Williams HR Law LLP

New AODA Compliance Obligations for Small Employers

January 26, 2017

[vc_row][vc_column width=”1/3″][vc_single_image image=”1960″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]The start of the new year brought with it new compliance standards under the Integrated Accessibility Standards Requlation of the Accessibility for Ontarians with Disabilities Act (“AODA”). As of January 1, 2017, small organizations will have to ensure that they comply with the applicable provisions of the Accessible Employment Standards, which focus on the recruitment and ongoing support of employees with disabilities.

Who is Affected

Small organizations refer to private and not-for-profit organizations that have between 1 and 49 employees, but not designated public sector organizations, the Government of Ontario, or the Legislative Assembly of Ontario.

Employees include each full-time, part-time, seasonal and contract worker, irrespective of employment status. Volunteers and independent contractors are not included in the determination of which entities are considered small organizations. However, small organizations may still have to train the volunteers and independent contractors with whom they deal on various accessibility standards in order to fully comply with the AODA.

Small Organization Compliance with the Accessible Employment Standards

General Recruitment

Small organizations now have an obligation to notify their employees and the public that they will accommodate the needs of people with disabilities in their hiring process. The notification can either be made in each job posting or through a general post on the organization’s website.

Assessment and Selection

Small organizations must notify job applicants, when they are individually selected to participate in an assessment or selection process, that accommodations are available upon request in relation to the materials and processes to be used during recruitment. If a job applicant then requests accommodation, the employer must consult with the applicant and provide accommodation that considers the applicant’s disability-related accessibility needs. Successful applicants must be notified of the employer’s policies with respect to accommodating employees with disabilities.

Ongoing Employee Support

Small organizations must now inform their employees of their policies used to support their employees with disabilities. New employees must be informed of these policies as soon as practicable after they commence employment with the small organization. Current employees of small organizations must be informed of such policies when the employer changes those policies. Furthermore, if an employee with a disability requests it, their employer must consult with the employee to arrange for the provision, in an accessible format, of information that is needed for the employee to perform their job and information that is otherwise generally available to employees in the workplace. This information can be provided in a number of formats, including newsletters, emails, memoranda, staff and individual meetings, website postings, and bulletin board postings.

Performance Management

Small organizations that engage in performance management, or take steps to assess and improve “employee performance, productivity and effectiveness, with the goal of facilitating employee success,” must consider the accessibility needs of employees with disabilities when undertaking such processes. Accessible performance management may include providing documents in accessible formats, providing feedback in an accessible manner (for example, in a manner that can be recorded), and providing accommodations to learn new skills and take on new responsibilities. If a small organization does not have a formal or informal performance management system, one need not be created.

Career Development, Advancement and Redeployment

Small organizations that increase the scope of activities within an employee’s current position, change an employee’s job to provide them with additional responsibility or to situate them at a higher level in the organization, must undertake such activities by considering the accessibility needs of those employees if they have disabilities. Small organizations that redeploy employees to other jobs or departments in the organization in order to avert the layoff of the employee must take into account the accessibility needs of those employees if they have disabilities.

Small Organization Compliance with the Information and Communications Standards

January 1, 2017, was also the deadline for small organizations to comply with the Information and Communications Standards, which establishes processes that organizations must follow to ensure that the manner in which they create, provide and receive information and communicate with other entities is accessible to people with disabilities.

Small organizations that have a mechanism for receiving and responding to customer feedback should also take note of this standard because accessible formats and communication supports for such mechanisms must be communicated to the public and made available for use upon request. Small organizations must consult with the person making the request in order to determine what a suitable format or communication support may be in their particular circumstance.

Furthermore, small organization that have developed emergency procedures, plans or public safety information that they have made available to the public generally must ensure that such information is provided in an accessible format with appropriate communication supports if requested to do so.

The Information and Communications Standards do not generally apply to product labels, unconvertible information, and information that an organization does not control. If a person requests that information or a communication be made available to them in an accessible format and it cannot be converted because doing so is either not feasible or the technology to do convert it is not readily available, the organization must inform the person why the request cannot be fulfilled and provide them with a summary of the information or communication.

Educational and training institutions have a unique set of obligations under the Information and Communications Standards. These include providing accessibility awareness training to educators and providing student records and information on program requirements, availability and descriptions in an accessible format to persons with disabilities.

Educational and training institutions include:

  • Institutions governed by the Education Act or the Private Career Colleges Act, 2005;
  • Institutions that offer all or part of a post-secondary program leading to a degree pursuant to a consent granted under the Post-secondary Education Choice and Excellence Act, 2000;
  • Ontario colleges and universities;
  • Public or private organizations that provide courses or programs or both that result in the acquisition by students of a diploma or certificate named by the Minister of Education under paragraph 1 of subsection 8 (1) of the Education Act; and
  • Private schools within the meaning of the Education Act.

If they receive notification of need for accessible formats and communications, educational and training institutions must provide resources or materials in an accessible format that take into account the accessibility needs of the person with a disability to whom the information is to be provided. These needs must be considered by either procuring or obtaining a conversion ready electronic format of those resources or materials, or by arranging for the provision of comparable resources and materials where they cannot be procured, obtained, or converted. To facilitate these requirements, producers of educational or training textbooks have had to make available accessible or conversion ready versions of textbooks since January 1, 2015, and will have to make available accessible versions of other materials by January 1, 2020.

Reporting Obligations

Small organizations need not file an accessibility report with respect to these compliance requirements. Small organizations with between twenty (20) and fifty (50) employees will still need to file accessibility compliance reports with respect to their obligations under the Customer Service Standards.

Penalties for Non-Compliance

An AODA Director may levy penalties against organizations of any size that fail to comply with their obligations under the AODA, including the Accessible Employment Standard. Penalties range from $200 – $2,000 for individuals and unincorporated organizations. Corporations may be assessed penalties between $500 and $15,000. A major contravention of AODA obligations may attract a daily penalty of $100,000 for corporations and $50,000 for individuals and unincorporated organizations where there the entity has a prior history of major contraventions.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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