AODA Era Part IV: Employment Standard

The employment standard under the Accessibility for Ontarians with Disabilities Act (AODA) is found under part III in the Proposed Integrated Accessibility Regulation (PIAR), which is slated to become law around July 2011 (not confirmed). This standard requires an organization that is an employer to engage in the proactive identification, removal and prevention of barriers hindering the full participation in employment of persons with disabilities. It also requires that organization to have policies and procedures for establishing individual accommodation plans where barriers cannot be removed proactively, shifting the onus from the individual who needs the accommodation to the person who provides it.

Moreover, the accessible employment standard will require organizations to provide accessibility for persons with disabilities throughout the employment life cycle (i.e., recruitment, retention etc). The employment accessibility standard will apply to all employers in Ontario, provided that they employ at least one paid employee including full-time, part-time, or apprenticeships. Note that this standard does not apply in respect of volunteers and other unpaid individuals (e.g., co-op placements, high school work experience placements).

Obligated organizations that are employers (as set out below), must meet the following requirements under the AODA employment standard:

• For the Government of Ontario and the Legislative Assembly, January 1, 2013
• For large designated public sector organizations, January 1, 2014
• For small designated public sector organizations, January 1, 2015
• For large organizations (50 or more employees), January 1, 2016
• For small organizations (at least one but fewer than 50 employees), January 1, 2017

To meet their obligations under the law, employers will have to develop an organizational accessible employment policy statement. Employers will also be required to develop, adopt, document and maintain policies that support the implementation of the commitments in the policy statement (also discussed in part II of this series), including:

• Prevention, identification and removal of barriers throughout the entire employment cycle
• Inclusive design of employment systems and processes
• Support of persons with disabilities from recruitment through hiring
• Individual accommodation plans
• Respect for privacy of information related to accommodation
• Provision of information in accessible formats and methods
• Provision of disability awareness training to employees

As with the Customer Service and Information and Communication Standards, the employment standard consists of several specific parts:

• Recruitment, selection, hiring process and employment cycle
• Workplace emergency response information
• Return-to-work process
• Performance management
• Career development and advancement
• Redeployment
• Accessible formats and communication supports for employees

All of the above parts to the employment standard must meet the documented individual accommodation plans outlined below, except when an employer is exempt.

Recruitment, selection, hiring process and employment cycle

Employers must focus on disability-related issues through the recruitment and hiring stages of the employment relationship.

This means employers would have to notify employees and the public about the availability of accommodation for applicants with disabilities in their recruitment, selection and hiring processes.

During that process, the employer would also have to 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 or processes to be used. If a selected applicant requests an accommodation, the employer must consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicant’s accessibility needs due to disability. However, the decision as to which accommodation is to be provided rests with the employer.

In addition, when making offers of employment, employers must notify the successful applicant of their policies to support employees with disabilities, including, but not limited to, job accommodations that take into account an employee’s accessibility needs due to disability. They must notify new employees again as soon as practicable after they begin their employment.

As for current employees, the employer must inform them of policies used to support and accommodate employees with disabilities, including, but not limited to, job accommodations that take into account an employee’s accessibility needs due to disability.

What does this mean in practical terms? Employers need to make sure that applicants with disabilities can find and compete for jobs just like everyone else. To do that, employers need to make sure that their entire recruitment process ― advertising, application, selection and interviewing — is accessible to ensure that people with disabilities are treated the same as every other applicant. In addition, employees who become disabled during employment must be able to retain their jobs, if they can still perform the essential duties of the job.

While the employment standard under PIAR does not require employers to have written job descriptions, they should do so. Written descriptions will help identify the essential duties of a position and will outline the special skills, knowledge and abilities required to carry out the essential duties. Essential duties are the basic job duties that an employee must be able to perform with or without accommodation.

Under human rights legislation, the ability for an organization to make reasonable accommodation is tied to the position’s essential functions. Thus, logically, this principle should help employers apply the AODA employment standards in their recruitment, selection, hiring processes and employment cycle.

As the employer, you should carefully examine each of your positions to determine which functions or tasks are essential to performance. In identifying an essential function, you should focus on the purpose of the function and the result to be accomplished rather than on how the function is currently performed. Determining whether a function is essential to the position, you should consider the following factors:

• Whether the reason the position exists is to perform that function
• The number of other employees available to perform the function or among whom the performance of the function can be distributed
• Whether the function is highly specialized and the incumbent is hired for the degree of expertise or skill required to perform the function

Duties or tasks not meeting the above test or otherwise not essential to the positions should be labelled “other duties.”

For example: In a job requiring the use of a computer, the essential function is the ability to access, input and retrieve information. It is not essential that the employee enter information by hand or read the information on the screen visually, since adaptive devices or computer software can enable a person without arms or with impaired vision to perform the essential functions of the job.

This may also include application forms in an alternative format or adjustments to the recruitment process such as arrangements during interview or correspondence in a different format.

For example, many organizations are moving toward using the Internet as their sole means of recruiting, posting jobs openings and collecting resumes and applications, if the career section of their website is not accessible, they may be opening themselves up to liability because they are closing people off from being able to apply for a job. Under the AODA, employers will have to ensure that an alternate application process is available in case their public website is inaccessible; or, better yet, make their online recruitment site accessible by designing web pages to meet the needs of individuals with motor, sensory and neurological impairments. Ensure online examinations conform to standards of web accessibility.

Remember that people with disabilities may not have acquired formative work experience that employers seek, but they may have other valuable experience and skills that will make them productive employees.

Employers could ask applicants to describe what adjustments they need in order to be evaluated fairly (i.e., more time on tests where appropriate, a sign language interpreter for interviews). Employers could provide a detailed description of the recruitment process so applicants can anticipate their adjustment needs at any particular stage.

Some experts suggest employers deactivate language testing (i.e., spelling) in CV sorting/scoring programmes for applicants with declared cognitive/language impairments to remove barriers for people with learning disabilities and also those with English as a second language. Or, review tests to ensure their relevance to specific positions and consider using job-tests and/or internships in the place of generic aptitude tests where applicable (i.e., allow a disabled computer programmer to demonstrate that they can operate the job-relevant software/ hardware).

When you do make a job offer, remember that for many reasons, applicants may not have declared a hidden disability such as diabetes or a mental health problem during the recruitment process. Many people do not regard their impairment to be a disability. Some are unwilling to disclose this sort of information for fear of being discriminated against. Others feel their disability has no bearing on their ability to do the job they are applying for and so is irrelevant. When offering the job, give every successful applicant another opportunity to discuss any adjustments they may require.

In addition, assistive devices such as voice recognition, large print or screen readers can allow an employee or potential employee to use a computer productively and independently. These assistive devices are designed to work with standard hardware and software platforms.

Workplace emergency response information

By January 1, 2012, every obligated employer must provide individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation due to the employee’s disability. If an employee who receives individualized workplace emergency response information requires assistance and with the employee’s consent, the employer must provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee.

Employers must provide the above information as soon as practicable after the employer becomes aware of the need for accommodation due to the employee’s disability.

The individualized workplace emergency response information must be reviewed:

• When the employee moves to a different location in the organization
• When the employee’s overall accommodations needs or plans are reviewed, and
• When the employer reviews its general emergency response policies

What does this mean in practical terms? This obligation to provide information in an accessible format will apply to your violence and harassment policies, your pandemic plans, your fire emergency procedures and your first aid plan, among other emergency response procedures.

Return-to-work process

Every employer, other than an employer that is a small organization, must develop and have in place a return-to-work process for its employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work. They must also document the available process.

The return-to-work process must outline the steps the employer will take to facilitate the return to work of employees who were absent because their disability required them to be away from work; and use individual documented accommodation plans as part of the process.

What does this mean in practical terms? You may have to change the work that employees do or how they do it. Anyone may acquire a disability during their lifetime, or a disability may become more limiting. The return-to-work process referenced in PIAR does not replace or override any other RTW process created by or under any other statute (i.e., Human Rights Code, Workplace Safety and Insurance Act). At first glance, they seem to have common characteristics. However, PIAR requires the employer to assess, identify and source in advance of an employee’s start date, if possible, any accessibility issues or accommodations needed by the returning employee.

Ensuring a successful return to work after an employee has been on short-term or long-term disability leave requires some planning. Employers should prepare and ensure that appropriate accommodations are in place and manage the return-to-work process. Some suggestions include:

• Evaluating employee’s functional abilities
• Performing physical demands analysis of existing or potential job
• Identifying specific job modifications, including assistive devices and ergonomic equipment
• Preparing a return-to-work plan, e.g., gradual return, supported return, part/full time, training, etc.
• Providing support and direction in the return-to-work process

Everyone in the workplace needs to understand that the return of a worker with an acquired disability might require what is perceived as “special treatment”. However, under this requirement, all must understand that, that “special treatment” will be given to everyone in the same way when applicable.

Performance management

An employer that uses performance management in respect of its employees must take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans, when using its performance management process in respect of employees with disabilities.

For the purpose of this standard, “performance management” means activities related to assessing and improving employee performance, productivity and effectiveness, with the goal of facilitating employee success.

What does this mean in practical terms? Organizations that use performance management processes (aimed at helping employees to be successful in their jobs) must make sure that they can be, and are, used in a way that is consistent with employees’ individual accommodation needs or plans. Employers should retain and promote staff using the same criteria for all employees. Think of identifying training needs when you regularly assess the work performance of all employees. Focus on achievements and how well someone does their job when you are assessing performance. Don’t focus on any disabilities employees may have. Provide information in accessible formats. Make sure you consider all options in looking for ways to support employees.

Career development and advancement

An employer that provides career development and advancement to its employees must take into account the accessibility needs of its employees with disabilities as well as any individual accommodation plans, when providing career development and advancement to its employees with disabilities.

For the purpose of this standard, “career development and advancement” includes providing additional responsibilities within an employee’s current position and the movement of an employee from one job to another in an organization that may be higher in pay, provide greater responsibility or be at a higher level in the organization, or any combination and which, for both additional responsibilities and employee movement, is usually based on merit or seniority, or a combination of them.

What does this mean in practical terms? Organizations that provide their employees with career development and advancement information must make sure that their employees with disabilities receive the information in a way that is consistent with their individual accommodation needs or plans. Make sure all employees have the chance for learning and personal development. Make sure all employees know about opportunities for transfers and promotions. Avoid informal contacts to avoid excluding anyone who may be interested. When an employee who has individual accommodation needs or an accommodation plan takes on new job responsibilities, the organization must provide training on the essential job duties. This training must take the employee’s accommodation needs or plan into account.

Redeployment

An employer that uses redeployment must take into account the accessibility needs of its employees with disabilities, as well as individual accommodation plans, when redeploying employees with disabilities.

For the purpose of this standard, “redeployment” means the reassignment of employees to other departments or jobs within the organization as an alternative to termination or temporary layoff, when the organization eliminates a job or department.

What does this mean in practical terms? Where organizations have a procedure for moving an employee to another job where the existing position is ended (redeployment), the procedure must:

• Apply to employees with disabilities
• Take individual accommodation needs or plans into account
• Include consultation with the employee and/or the employee’s representative, upon request

Accessible formats and communication supports for employees

In addition to the above obligations, where an employee with a disability so requests it, every employer must consult with the employee to provide or arrange for the provision of accessible formats and communication supports for:

a) Information that is needed in order to perform the employee’s job; and
b) Information that is generally available to employees in the workplace.

The consultation determines the suitability of an accessible format or communication support, but the final determination as to which accessible format or communication support will be used rests with the employer.

Documented individual accommodation plans

Employers, except employers of small organizations, must develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities.

The process for the plans includes the following elements:

• The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan
• The means by which the employee is assessed on an individual basis
• The manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to determine if and how accommodation can be achieved
• The manner in which the employee can request the participation of a representative from their bargaining agent, where the employee is represented by a bargaining agent, or other representative from the workplace, where the employee is not represented by a bargaining agent, in the development of the accommodation plan
• The steps taken to protect the privacy of the employee’s personal information
• The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done
• If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee
• The means of providing the individual accommodation plan in a format that takes into account the employee’s accessibility needs due to disability
• Individual accommodation plans must:
  • If requested, include any information regarding accessible formats and communications supports provided
  • If required, include individualized workplace emergency response information, and
  • Identify any other accommodation that is to be provided

Obligated organizations will be required to provide employees with a copy of their individual accommodation plan.

Although they must still comply with the process, private and not-for profit organizations with 1–49 employees will not be required to have this process in writing.

Also note that whenever there is a change in the employer’s policy to accommodate and support a person with disabilities, the public, applicants and employees, must receive notification of such change.

Last words

It is important for employers to remember that an organization’s compliance with the accessibility employment standard under the AODA does not necessarily mean it has met its obligations under the Human Rights Code or the Workplace Safety and Insurance Act. The government has made this clear by stating: “The Accessibility for Ontarians with Disabilities Act does not diminish existing legal duties under the Code and other laws with respect to accommodation of persons with disabilities.” Organizations will still be required to accommodate to the point of undue hardship or meet their return-to-work and re-employment obligations under the WSIA.

Make sure your employees, managers, supervisors and recruitment managers are aware and trained on their legal obligations under the AODA employment standard.

A truly accessible workplace takes into account the needs of the individual employee, but also strives to remove systemic barriers for current and future employees and customers of your company. It is important that employees feel they can disclose information and ask for assistance.

Previous instalments in the AODA Era series:

AODA Era Part III: Information and Communication Standard
AODA Era Part II: What’s Up Next? The Proposed Integrated Accessibility Regulation
The AODA Era Part I: The Accessibility Standards for Customer Service, How Much Time Do I Have?