04 Jan Ontario raises the bar for accommodation, Canadian Employment Law Today, Issue No. 549, (January 27, 2010)
(reprinted in The Accommodator, Vol. 62, No. 2 at 12-14.)
The bar for accommodation for Ontario employers is about to be set a little higher. The final version of the Employment Accessibility Standard developed under the Accessibility for Ontarians with Disabilities Act, 2005, has been released and is expected to become law early in 2010. The standard creates new obligations for employers with respect to recruitment, hiring, retention, training, accommodation, separation and termination of Ontarians with disabilities. It outlines what persons with disabilities can expect in the workplace and extends employers’ legal duty to accommodate beyond the Ontario Human Rights Code’s requirements. Given the direct financial and legal implications, it is crucial for employers to familiarize themselves with their new obligations and budget expenditures to ensure compliance.
Who is affected by the standard?
The standard applies to all “organizations providing paid employment” in Ontario with at least one employee. It captures full-time, part-time and paid casual employment, paid apprenticeship and paid seasonal employment. Since the standard applies only to “organizations,” it does not apply to employment relationships between individuals and domestic workers or professionals and their staff. Such exclusion inadvertently creates a discriminatory environment, as the standard appears to give a disabled person employed at a factory better protection than one working as a housekeeper. In addition, the emphasis on “paid employment” excludes volunteer relationships and internships.
Recruitment, assessment and hiring
The standard increases employers’ obligations when recruiting, assessing and hiring persons with disabilities. All classes of organizations would be required to inform job applicants that accommodation will be provided to them from the recruitment through hiring stages. When recruiting, either internally or externally, employers will have the following obligations:
- Provide information about the essential job duties, which are defined as “duties that are critical to fulfilling the purpose or outcome of a particular job.”
- Demonstrate how their external recruitment process enables candidates with disabilities to receive information about job openings. However, it is unclear what “demonstrate” entails and to whom it must be demonstrated.
- Include in any job posting a note that “individual accommodation will be provided to applicants who are selected for assessment.”
- Inform applicants selected for further consideration that the assessment and selection materials and processes are available in accessible format, upon request.
- Ensure such materials and processes measure the applicants against the “essential duties” of the position. When an employer makes a formal job offer to a person with a disability, it must include information on its individual accommodations procedures.
Accessible employment policy statement and policies
The standard stipulates that within one year of its implementation, all classes of organizations shall develop and maintain an “accessible employment policy statement” that should include the following commitments:
- Identification, prevention and removal of barriers throughout the employment life cycle.
- Development of inclusive systems and procedures.
- Support of persons with disabilities with accommodations, from recruitment through hiring.
- Development of individual accommodation plans to support employees with disabilities.
- Provision of information in accessible formats and methods.
- Provision of disability awareness training to employees.
The standard also requires organizations “to develop, document and maintain accessible employment policies” that support the implementation of the commitments included in the policy statement and identify a person who will be responsible for adherence to these policies. The standard requires accessible maintenance policies to be put in place within four years of its implementation by organizations with more than 50 employees. Employers with fewer than 50 employees are exempt from this requirement.
Employers are required to provide disability awareness training for all employees including employment policies and procedures, what accommodations can be made, how to identify accommodations or how to develop an individual accommodation plan. Implementation timelines range from three to five years and are applicable only to employers with more than 50 employees.
The standard would require organizations to develop formal, up-to-date procedures aimed at establishing individual accommodation plans, which must:
- Assess and accommodate employees on an individual basis.
- Detail how an employee can request accommodation.
- Describe the type of accommodation to be provided. However, it is unclear how this can be meaningfully done, given the individualized nature of disability and related accommodation needs.
- Specify the timing for the accommodation.
- Include individualized emergency evacuation procedures, if necessary.
- Detail how plans are reviewed and modified.
- Detail how the privacy of accommodation is protected.
- Set out the process of solving disputes with respect to plans.
Accessible information and communications
Employers will be required to provide individual accommodation plans, employee orientation materials, job testing materials, performance management processes, separation or termination information, return to work procedure, and emergency and safety information, in formats or methods compliant with the accessible information and communications standard. This arguably inflexible requirement would have a significant financial and operational impact on employers.
Most employers will be required to identify indicators of progress that are suitable and reasonable for their workplace, to assist in tracking progress toward accessible employment.
Employers will also have to explain emergency and safety information and disseminate it to employees with disabilities as soon as practicable, including information on alarm systems and emergency evacuation procedures. Other components of the standard include performance management, care management and advancement requirements, which must be applied to employees with disabilities in a way that is consistent with their individual accommodation needs or plans.
TIPS FOR EMPLOYERS
The proposed changes will transform HR practices in Ontario from reactive to proactive. Unfortunately, such a transformation will be costly for employers, especially those with undeveloped HR practices. Employers should not assume they will be only obligated to comply with the standard and not the Human Rights Code. The standard should be viewed as complementary to and building on the code. However, reconciliation of competing requirements under the standard and the code would likely be left to the judicial process, which creates the potential for a flood of legal proceedings and varying decisions on accommodation issues. Employers should be vigilant in ensuring compliance with phased implementation timelines of various standards for different classes of employers. Corporate policies and procedures must be developed or revised to ensure compliance with the standard.