Canadian HR Reporter

real key — communication is one of the pivot points in any employment relationship and I see the 11 main obligations that are coming out... all deal with communications." Overall, companies are sub- stantively prepared for AODA in that most of the concepts involved are very similar to concepts and requirements under the human rights code, said Holly Reid, a partner at Blakes in Toronto. "Where I think there's still work to do is ensuring that employers have revised their documentation to meet the specific requirements of AODA, so it's more about pro- cess than substance." Recruitment By 2016, employers with 50 em- ployees or more will be required to notify both employees and the public about the availability of ac- commodation for job applicants with disabilities in the recruit- ment processes. ey must also notify applicants who are selected to participate in an assessment or selection process that accommo- dations are available upon request "in relation to the materials or pro- cesses to be used," such as an email interview for a deaf candidate. If a selected applicant requests accommodation, the employer must consult with the applicant to arrange for suitable accom- modation. And in making offers of employment, employers must notify successful applicants of the policies for accommodating em- ployees with disabilities. To an extent, some employers may be a little bit scared by this one, said Ingram. "You might have some employ- ers who look at that and say, 'Why do I need to bring this to atten- tion until they're actually hired and they're my employee? What obligation should I have to them when I'm only just in the recruit- ing or in the job posting phase?'… that's new and I think you're going to see a significant change in job postings and the phraseology." When it comes to notifying po- tential employees of accommoda- tions, it could be on the company's website or people could be told over the phone, said MacLeod. "(AODA) doesn't specifically say it has to go on the job ad, al- though that's one obvious way to comply with the law and I think many employers will do that," he said. "e legislation is pretty flex- ible in terms of how you inform people — you can tell them ver- bally, you can put it in an email or in a letter or on the letter confirm- ing the interview." In complying, there may be fears of discrimination on the employers' side as they think, "Oh my goodness, is this going to open me up to liability if I turn them down?" said Ingram, adding it's all about documentation. "Employers have got to really pick up their game on documen- tation… even on the temp agency side to the extent that (if ) you've got a recruiter or a temp agency who's doing it, you've really got to be diligent with your contractors as well, and your suppliers, and not take it for granted that they may be doing things (right)… you're going to want to take a look at your own contracts and see that you've got the safeguards in there that you're satisfied they're doing what they're supposed to." AODA doesn't change the re- quirements employers already have under the human rights code to accommodate employees and job applicants with disabilities, but it does require employers to be more rigorous in how they document the accommodations and how they notify job applicants about the availability of accom- modations, said Reid. "What we'll see is employ- ers having to take a look at their recruitment and new hire docu- ments and policies and perhaps revise them to reflect specifically that job applicants have the right to accommodation, if required." As for risks around discrimina- tion complaints, those already ex- ist, she said. "But the fact that there's more accessibility and accommoda- tion issues that will be more highlighted to job applicants may lead to a rise in complaints under human rights, that's certainly a possibility." Individual accommodation Employers will also have to de- velop and have in place a written process for the development of documented individual accom- modation plans for employees with disabilities. These plans should include: • how an employee participates in the development of her plan • how an employee can ask for a representative from her bargain- ing agent or workplace to partic- ipate in the development of the accommodation plan • how an employer can request as- sistance from an outside expert • how an employer will protect the employee's privacy • how the employer will tell an em- ployee his accommodation plan has not been accepted. It's going to take some time for employers to figure out all the as- pects of the plan and what needs to go into it, said MacLeod, adding "you have to provide workplace emergency response information in an individualized manner for certain people with disabilities, so that's another obligation, but that should be included in the individual accommodation plan." Return to work As part of AODA, employers must develop and have in place a return-to-work process for em- ployees who have been absent from work due to a disability and require accommodations to re- turn to work. e process should be documented and outline the steps the employer will take, using individual accommodation plans. e more substantive change employers are going to face will be making sure they have an ac- commodation policy and return- to-work policy that includes spe- cific, prescribed elements in the regulation, said Reid. "(This) will require employ- ers… to review and likely revise any current accommodation and return-to-work policies they have to ensure that they're compliant because most of the accommoda- tion and return-to-work policies I've seen in my practice, they don't necessarily include all of the pre- scribed elements that are in the regulation. So there will be, at a minimum, some tweaking of the policies required." While large employers have had accommodations on the radar for a long time, smaller employers that rarely face accommodation requests are going to have to come up with new processes, instead of dealing with this on a case-by- case basis, said MacLeod. "Most disabilities can be ac- commodated pretty simply and pretty cost-effectively, and that's the reality in the world of small business. But now if you've got 50 or more employees, that's not good enough — you have to have a formal process in place to deal with all of these scenarios." Performance management, career development On the performance management piece, employers must take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans, according to AODA. But it's difficult to know exactly what "take into account" means, said Reid. "At a minimum, I think it re- quires employers to be more aware of accessibility issues and individual employees on ac- commodation plans when going through the performance man- agement process. And that may require looking at the documents they use during those processes to determine whether accessi- bility or accommodation should be specifically referenced… A lot of it's documentation and communication." Some of this goes back to what the human rights tribunal is push- ing right now around the duty to inquire on the part of the employ- er, said Ingram. "It's not just as simple as saying, 'You're late every day'… 'You're not getting those reports done as quickly' — it's having meaning- ful conversations," she said. "Per- formance management is about communication, it's about fairness to the employee, making sure that they know what the expectations are, you're telling them they're not meeting them and you're offering an opportunity to tell you why." A lot of employers and employ- ees still equate performance man- agement with the annual review as opposed to ongoing performance management, said Ingram. "You see a lot of cases in partic- ular that deal with discipline and terminations coming out of per- formance when, in fact, had you actually looked at the reason, the foundation of the performance issue, there may have been a dis- ability there." AODA also obliges employers to take into account the accessibility needs of employees with disabili- ties, as well as individual accom- modation plans, when providing career development and advance- ment, such as additional responsi- bilities, promotions or raises. "ose provisions are mostly about creating awareness for managers who make decisions relating to career development, to keep in mind that there may be certain individuals who have accommodation or accessibility needs," said Reid. at's one of the more common sense obligations, said Ingram, and it goes back to the discrimi- nation side as opposed to the ac- cessibility side. "If you're going to offer career advancement, executive MBA programs, for example, why wouldn't you offer them to every- body and if you are going to of- fer them, where are you offering them, are they accessible?" Process important AODA < pg. 1 CANADIAN HR REPORTER October 19, 2015 8 NEWS Full-time | Part-time | Online Give your HR practice the added advantage. Immigration Consultant Diploma Program FOR INFORMATION & APPLICATION: 604.449.4788 or 1.866.609.0936 www.ashtoncollege.ca Qualifying as a regulated immigration consultant allows you to assist and represent foreign talent in the immigration process. "ere will be, at a minimum, some tweaking of the policies required." Richard Priestley, head of retirement income at Canada Life in the U.K., poses during an interview in London in 2014. Priestley, who broke his neck in a cycling accident in 1998, said his injury has not had a major impact on his career. Employers in Ontario are facing a Jan. 1, 2016, deadline as part of the Accessibility for Ontarians with Disabilities Act, 2005. Credit: Neil Hall (Reuters)

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