Canadian Employment Law Today

Ontario's AODA progress Report suggests Ontario employers are making good progress towards compliance with accessibility legislation, but how it will be enforced is still uncertain BY PAMELA CHAN EBEJER W hen the first wave of compli- ance requirements under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), came into effect on Jan. 1, 2012, many employers feared an overwhelming set of new compliance requirements to meet. Employers were kept on their toes with the staggered deadlines year after year, as well as the comprehensive accessibility standards that spanned five areas including custom - er service, information and communica- tions, employment, and the design of public spaces. At the same time, the AODA has faced questions and criticisms about how the legislation would be enforced given that it lacks an individual complaint mechanism. While the accessibility standards under the AODA have required many organiza - tions to alter or reconsider how they interact with, provide information to and accommo- date customers, employees and the public, organizations appear to have adjusted well to the new requirements. e Accessibility Directorate of Ontario released its Acces - sibility compliance and enforcement report 2016 in July 2017, which outlined the results of its audit and enforcement activities that occurred throughout 2016. e results of compliance were positive, with the report concluding that "overall, many organiza - tions are incorporating accessibility into their daily business practices." e report's conclusion was based on the results of 1,604 compliance activities con - ducted by the directorate. e bulk of the compliance activities were split between Phase 1 and Phase 2 audits. Phase 1 audits focused on an organization's requirement to submit a self-certified accessibility compli - ance report online and Phase 2 audits ex- amined an organization's compliance with the AODA by requesting documentation to verify compliance. A total of 1,205 Phase 1 audits were com - pleted in 2016 for organizations that had nev- er filed an accessibility compliance report, re- ported they had not met their requirements under the law, or had filed an accessibility compliance report in 2012 but not 2014. e directorate found the following trends: • 93 per cent provide emergency procedure plans or public safety information to the public in an accessible format, when asked • 89 per cent provide customized emergency response information for their employees who have disabilities, when asked • 81 per cent comply with the requirements under the Customer Service Standards. Fully 361 audits were conducted at Phase 2. e organizations audited at this level in - cluded those required to provide evidence of compliance as represented in their filed compliance report, or organizations that failed to be compliant at Phase 1. For small organizations (one to 49 employees) from the business/non-profit sector, the rates of compliance were the following: • 64 per cent have accessibility policies • 63 per cent provided accessibility training • 92 per cent established a method to receive and respond to public feedback on acces - sibility. e directorate found the following trends amongst all Phase 2 organizations: • 92 per cent notified employees and the public about the availability of accommo - dation for applicants with disabilities in the recruitment process • 90 per cent provided individualized work- place emergency response information for employees with disabilities • 68 per cent provided accessibility training to staff, volunteers and contract workers as soon as practicable. Of the 361 organizations audited at Phase 2, the directorate issued compliance plans to 45 per cent. e compliance plan con - tained specific steps for an organization to take in order to meet its legislative require- ments. Eighty-four percent of organizations that received a compliance plan met its ob- ligations without an inspector being sent. In fact, of the 1,604 compliance activities conducted, inspectors were only sent to 38 organizations and monetary penalties were only levied on two of those organizations. Targeted audit blitzes were also conduct - ed across 125 organizations focusing on the employment standards requirements of the Integrated Accessibility Standards Regula- tion to notify of the availability of accom- modation for applicants with disabilities in the recruitment process and to notify successful applicants of policies for accom- modating employees with disabilities when making offers of employment. e results were the following: • 87 per cent notified their employees of available accommodations for applicants with disabilities during the recruitment process • 81 per cent notified successful applicants of their policies for accommodating employ - ees with disabilities • 22 compliance plans were issued and all deadlines in the compliance plans were met with no requirement to enforce. e report concluded that the director - ate would continue its compliance and en- forcement activities into 2017 by increasing compliance efforts for all organizations, in- creasing targeted audit blitzes and continu- ing to audit the employment standards re- quirements to ensure workplaces maintain a minimum level of accessibility. Question of enforcement While the report's results suggest On- tario is moving towards the goal of be- ing an accessible province by 2025, the AODA continues to be criticized for be- ing legislation that cannot be completely enforced. e report's results indicate there are still a number of organizations that have not met the standards reviewed as part of the compliance activities, and these organizations should be wary as the directorate can impose fines of up to $50,000 per day for individuals and un- incorporated organizations, and up to $100,000 per day for corporations. Orga- nizations will be happy to know that to date, we have yet to see such fines levied on any individual or organization. ere have only been two reported cases con- sidered by the Licensing Appeals Tribu- nal, which hears appeals of directorate orders or decisions, and both cases were related to the failure to file compliance reports resulting in small monetary pen- alties of $250 and $500. e criticism of the AODA's enforcement THE ACCESSIBILITY for Ontarians with Disabilities Act (AODA) has been in effect for more than five years now, with certain parts for less. HR lawyer Pamela Chan Ebejer looks at how well Ontario employers have adapted and what questions still remain. 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: ACCOMMODATION BACKGROUND

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