The Ontario government is updating the accessible employment standards to make employment more accessible to people with disabilities. Consequently, the Employment Standards Development Committee would like to get interested stakeholders and the public’s feedback on the initial recommendations to the 2018 Review of the Employment Standards under the Accessibility for Ontarians with Disabilities Act (AODA).
The following is the Employment Standards Development Committee’s initial advice and recommendations on the initial proposed Employment Standards, itemized and organized by focus area, and some thoughts.
1. A new long term objective: The initial long term objective of the accessible Employment Standards was described as follows:
“The long term objective of this initial proposed employment accessibility standard is to set out policies, procedures and requirements for the identification, removal and prevention of barriers across all stages of the employment life cycle for persons with disabilities.”
The new long term objective is described as follows:
“The long term objective of the Employment Standards is to identify, remove and prevent barriers across all stages of the employment life cycle for persons with disabilities by 2025.” The new objective more clearly captures the intended outcome of the accessible Employment Standards.
The change in long term objectives outline the need for the organization to assess their workplace to see if there are barriers preventing the hiring or continued employment of employees with disabilities. However, removing the requirement to set out policies, procedures and requirements to remove and prevent those barriers should have remained in the new long term objective description.
2. Improved clarity with the Ontario Human Rights Code and the duty to accommodate: The review committee recommends that within two years of the acceptance of the recommendations, the government and the Ontario Human Rights Commission review and strengthen guidelines and clarification for employers with regard to the differences between Ontario Human Rights Code and the AODA’s Employment Standards.
This recommendation is a reflection of the confusion organizations are having in understanding the differences between the two legal obligations, and how the duty to accommodate under the Ontario Human Rights Code and the AODA overlap and work simultaneously to protect employees with disabilities.
Organizations need clear and concrete guidance on how they can provide accessible workplaces to people with disabilities using the AODA while meeting their duty to accommodate under the Code, which is a rights-based framework with stronger but more general procedural and substantive obligations. According to the Ontario Human Rights Commission, “one way to help harmonize the AODA with the Code is to reference obligations under the Code and set out interpretive human rights principles directly into the standards so that those responsible can properly interpret and apply the standard in light of these obligations.”
3. Clarifying the definition of employee under the AODA: The review committee believes a gap exists because a definition of “employee” is not included in the AODA and Integrated Accessibility Standards Regulation (IASR). The committee recommends that within 12 months of the acceptance of the recommendations that a definition of “employee” which considers existing employment legislation should be added to the AODA or IASR and be consistently applied throughout. This definition should be consistent with the intent and purpose of the AODA and should be based on the employer-employee relationship.
4. Recruitment, assessment and selection:
During the recruitment and selection process, there are three basic things the employment standard under the AODA requires Ontario employers to do:
- Recruitment. Let job applicants know you’ll provide accommodation during the hiring process.
- Selection. Inform applicants you invite to take part in the selection process that they will be accommodated, and discuss how you can best meet their needs.
- Notice to successful applicants. When making an offer of employment, include a notice about your policies for accommodating employees with disabilities.
However, since the implementation of the employment standards, issues have arisen with making the recruitment and selection process accessible. The issues and committee recommendations include:
- Section 22: Notice of availability of accommodations throughout recruitment by employers should be expanded to include notice of availability of accommodation during employment within 12 months of acceptance of the recommendation. The policy intent of this recommendation is to amend Section 22 notice and not to expand other requirements of the accessible Employment Standards. The rationale of the recommendation is that this provides applicants with better awareness of their right to accommodation during the employment lifecycle. The requirement to accommodate throughout employment under the Ontario Human Rights Code may currently not be clear.
- Section 23: Guidelines and best practices should be developed on how to make the recruitment, assessment and selection processes and materials inclusive by design. This should be developed within two years of the government accepting the recommendation.
- Section 23 and 24: Notice to successful applicants be reviewed and strengthened to better promote guidelines and best practices to clarify the requirements to help employers and candidates have an open and successful conversations to accommodate an individual’s needs. This should be done within two years of the government accepting the recommendation.
5. Workplace emergency response information: The committee recommends that the word “individualized” be removed from Section 27 within 12 months from effective date. Section 27 makes references to “individualized” emergency response information. The committee believes the use of the word “individualized” may result in obligated organizations unnecessarily developing individualized emergency response plans. Questions of individualized emergency plans and emergency accommodations needs are best addressed as part of Section 28 requirements for individualized accommodation plans.
6. Individualized accommodation plans: The committee recommends that to help with compliance with section 28, the government, within two years of approving the recommendations, should be responsible for a centralized portal for updated resources for individualized accommodation plan processes. The intent of the recommendation is that the tools and resources align with the OHRC’s policies on the procedural duty to accommodate. In addition, the OHRC should be consulted to ensure harmonization. This recommendation should be completed within two years of the government accepting the recommendation.
7. Monitoring of return to work processes (Section 29): The committee recommends that the government should monitor the implementation of Section 29, including any gaps and challenges to inform the next review of the accessible Employment Standards. The committee believes the desired outcome of this section is that employers create processes that better recognize the needs of persons returning to work. The return to work processes under other legislation are constantly evolving, so more information, research and public feedback may be required. Monitoring should begin immediately upon the government accepting recommendation.
Feedback on the above recommendations can be provided online by May 5, 2018. You can also submit your feedback as follows:
Email at firstname.lastname@example.org
Attention: Laura McKeen, Chair
Employment Standards Review Feedback
Accessibility Directorate of Ontario
777 Bay Street,
6th Floor, Suite 601A