Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER March 24, 2014 March 24, 2014 NEWS NEWS 3 Ontario employers Ontario employers given failing grade on AODA given failing grade on AODA Failure to comply with accessibility laws could leave employers Failure to comply with accessibility laws could leave employers with whopping fi nes as province steps up enforcement with whopping fi nes as province steps up enforcement BY LIZ BERNIER EARLY LAST year, Doug Mac- Leod received a rather distressed phone call from a client. e client — one of the larger employers MacLeod's law firm represents — had just received notice from the Ontario govern- ment that it was not in compli- ance with the Customer Service Standard under AODA, the Ac- cessibility for Ontarians with Dis- abilities Act. " ey'd never heard of the leg- islation before, despite the fact it was quite a large employer," said MacLeod, who has offi ces in To- ronto and Barrie, Ont. The enforcement notice set out the relatively steep fi nes the employer could face if it did not comply within 15 days — which it successfully did. "So that was kind of a good news story, from my perspective. But not all employers react that way," said MacLeod. As of November 2013, about 70 per cent of eligible businesses in the province still hadn't complied with the Customer Service Acces- sibility Standard under AODA. at standard came into force on Dec. 31, 2012, and required employers with 20 or more em- ployees to submit a plan to the government detailing the organi- zation's strategies for accommo- dating customers with disabilities, training staff and receiving feed- back from customers. "Essentially, 36,000 organiza- tions with 20 or more employees had, as of last fall, not fi led the mandatory access report. And they'd had fi ve years to prepare and another 10 months past the deadline," said David Lepofsky, a Toronto lawyer and chair of AODA Alliance, who fi led a free- dom of information request to obtain that information. "So what the government did in response was to write (en- forcement letters) to 2,500 of the 36,000. And that is a drop in the bucket." Focus shifts from awareness to enforcement e provincial government needs to take a stronger stance toward enforcing the standard, said Lep- ofsky — enforcement letters alone aren't enough. "All they're trying to enforce right now, from what we can see in this initiative, is the requirement to fi le a self-report. We want them to go further. ey are obliged to go further and to see if people are doing what they say they're do- ing," he said, adding that audits and inspections are also among the enforcement tools available to the government. ose 2,500 enforcement no- tices were just an initial step in the government's shift in focus from raising awareness of the leg- islation to enforcing compliance, according to Brigitte Marleau, se- nior advisor, media and commu- nications, at the Ontario Ministry of Economic Development, Trade and Employment in Toronto. "In January 2014, we took the next step by starting to issue di- rector's orders with administra- tive monetary penalties to those organizations that still did not submit a 2012 report. Organiza- tions that fail to respond to direc- tor's orders can be prosecuted, where necessary," she said. "We will continue to pursue compliance and enforcement ac- tion to bring more private sector organizations into compliance with this important piece of leg- islation. And we will continue to work hard — including through audits and inspections, where warranted — to improve private sector compliance." e government is also devel- oping a compliance plan that will be available to the public when it is fi nalized, said Marleau. But that compliance plan should encompass more than just the customer service standard, said Lepofsky. "We also want that plan to cov- er not only the customer service standard… but other standards (that) have gone into eff ect since 2011. ere's a number of other enforceable requirements." Severe fi nes, penalties ere are a number of tools at the government's disposal for en- forcing compliance with AODA standards. As things stand, fi nes and pen- alties can be quite severe for em- ployers that are not in compliance, according to Parisa Nikfarjam, a lawyer at Rubin omlinson in Toronto. "It starts with a non-compliance letter and then penalties range from $200 to $2,000 for individu- als, and then $500 to $15,000 for corporations. On top of that, though, the inspectors have the right to come in and inspect the property and ask for informa- tion on how you're making your premises accessible, what kind of policies, what kind of accessibility plans you have," she said. "If there's any false or mislead- ing information, if there's any obstruction to that inspection or if you fail to actually comply with an order… if you fall into that category, for individuals it's $50,000 per day, for each off ence, and then for corporations, it's $100,000 a day. "So AODA, as much as there's really helpful guidance in terms of what employers need to do, there is some teeth to it as well." And onerous inspections, au- dits and steep fi nes aren't the only way organizations could suffer from non-compliance. "Everything in (AODA) is ac- tually good for an organization to do. And for non-compliers, I'd also say that you're essentially ced- ing the market to your competi- tors," said Lepofsky, who is blind. " ere are 1.7-million people with disabilities in Ontario, there's a billion of us around the world — I don't know anybody who can aff ord to cut them out of their customer base." Intimidating process? Some employers may still be a bit intimidated by the AODA legisla- tion, which has a lot of diff erent deadlines and moving pieces, said Nikfarjam. But it's not as diffi cult as it may initially seem. "A lot of employers are trying to sift through and fi gure out 'What applies to me? What applies to my company? How can I go about do- ing that?' Because seeing AODA initially, it may seem a bit of a daunting task. But I think employ- ers are now seeing that there are strategies," she said. "What I see is actually an en- couraging number of employers actually taking this seriously... em- ployers have gotten the message that they need to abide by this, it's just a matter now of taking that and putting it into practice." Putting the AODA standards in place can also help widen your pool of talent — not just your cus- tomer pool, said Lepofsky. "Providing barrier-free custom- er service will have the side benefi t of also helping stimulate accessi- bility in the workplace. And that's good for any organization that wants to have a broader pool of potential employees." e legislation will also serve to help accommodate current em- ployees who may not have a dis- ability now — but might develop one later. "I was sighted as a kid — I'm now totally blind. And most peo- ple who experience vision loss ex- perience it as they get older, just as one example," he said. " ey'd rather be in a work- place where when that change does happen, it's better for them to be already equipped for it." Building code changes AODA standards will help equip employers for those changes, as will additional accessibility chang- es to the Ontario Building Code that take eff ect Jan. 1, 2015, said Nikfarjam. "It's not just AODA itself — there's also building code changes that are coming in recognition of what's embedded in AODA." Some employers may still be worried about the eff ort or ex- pense these changes may incur. But five years from now, the workplace is going to change dra- matically anyway — so employers should start laying the ground- work today to avoid falling be- hind, said Lepofsky. " e smart employer says, 'I want to be ahead of the game.'" COMPLIANCE Key dates for AODA standards AODA is made up of separate parts, or standards, that are currently being phased in. The standards come into effect on different dates, depending on the size of a business and whether it is in the public, private or not-for-profi t sector. The goal is to make Ontario fully accessible by 2025. Customer Service Standard: Came into effect Jan. 1, 2012, for all private sector employers with one or more employees. Employers with more than 20 employees had to submit an accommodation plan to the government by Dec. 31, 2012. Integrated Accessibility Standards Regulations (IASR): Deadlines for private and non- profi t organizations will begin in 2014 and 2015, depending on the size of the organization. The IASR set out special requirements for four standards: employment, information and communications, transportation and design of public spaces. There are also general requirements that apply to all four. Ontario Building Code changes: Will take effect beginning Jan. 1, 2015. Source: Ontario Ministry of Economic Trade, Development and Employment "It's not just AODA itself — there are also building code changes that are coming in recognition of what's embedded in AODA."

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