On May 1, 2019, the Manitoba’s Accessibility Standard for Employment became the second standard enacted by Regulation (70/2019) under The Accessibility for Manitobans Act which aims to remove and prevent barriers in employment practices to meet the needs of employees and job applicants with disabilities.
The Accessibility Standard for Employment requires larger organizations and businesses with 50 or more employees to implement and document accessible employment policies, measures and practices (i.e., recruiting, performance review, career development etc.). They must also make these available to the public upon request in an accessible format, and provide reasonable accommodation to employees or job applicants who have, or may have a disability and face one or more barriers in the workplace.
For the purposes of this regulation, an accommodation is reasonable if it (a) is required for an applicant to access the materials or activities used in the assessment or selection process and would not result in undue hardship to the employer; or (b) is required for an employee to perform their employment responsibilities or access the benefits available to them, by virtue of their employment and would not result in undue hardship to the employer.
- The Manitoba government must comply within one year, by May 1, 2020.
- Public sector organizations must comply by May 1, 2021.
- Private sector, non-profit organizations and small municipalities must comply by May 1, 2022.
The Private sector includes Manitoba businesses and organizations with one or more employees.
In addition, all employers in the public, private and non-profit sectors must comply by May 1, 2020, with the following two requirements in the standard:
- Workplace emergency response information: Create emergency response information to help employees with disabilities stay safe during emergencies.
- Workplace emergency assistance: Ask employees who require assistance during an emergency for permission to share information with individuals who agree to help.
Definitions found in Regulation
It is important to understand some of the definitions found in the Regulation for the purpose of complying. As stated in the Regulation,
“Accessible format” means a format of information that is used to facilitate effective communication by, or with a person disabled by a barrier, and includes large print, recorded audio, electronic formats and braille.
“Applicant” means a person who applies for employment.
“Communication support” means a support used to facilitate effective communication by or with a person disabled by a barrier, and includes sign language, captioning and augmentative and alternative communication supports.
“Large employer” means an employer who (a) in the case of a seasonal workplace, employs at least 50 employees to do work that is expected to continue for at least 90 days; and (b) in the case of any other workplace, employs at least 50 employees.
“Service animal” means a service animal as defined in The Human Rights Code.
“Support person” means, in relation to a person who is disabled by a barrier, a person who accompanies the person to (a) support the person obtaining, using or benefiting from a good or service provided by an organization; or (b) assist the person in addressing his or her communication, mobility, personal care or medical needs.
Specific obligations under the accessible employment standards in various stages of employment
Employers must have measures and processes in place to make the following stages of employment take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans. Employers also need to consider reasonable accommodation at the various stages of employment as it applies to their organizations. These stages of employment include:
- Recruiting and hiring
- Performance management
- Career development training and internal advancement
- Return to work process
An employer must ensure they train their employees in the responsibilities and obligations under the accessible employment standard found at these various stages, including developing and implementing employment policies and practices, individual accommodation plans and communication support.
Specifically the obligations found in the Regulation include:
1. Recruiting and hiring employees
The accessible employment standard requires employers to inform potential job applicants and job applicants of the following:
- of the availability of reasonable accommodations for those who may be disabled by a barrier in respect of the assessment or selection process; and
- that upon request, reasonable accommodations may be available for those who may be disabled by a barrier in respect of the materials or activities used in the assessment or selection process.
When an applicant makes a request for accommodation, the employer must consult with the applicant to determine the reasonable accommodations for the barrier or barriers that are identified; and provide, or arrange for the provision of, those reasonable accommodations when carrying out the assessment or selection process.
When offering employment to a person, an employer must inform the selected applicant of the employer’s measures, policies and practices for accommodating employees disabled by one or more barriers in the workplace.
2. Performance management
“Performance management process” means any process used by an employer to manage the work of individual employees or to plan, monitor and review an employee’s work objectives and overall contribution to the employer’s organization.
An employer must ensure that any performance management process implemented in the workplace takes into account the following:
- that employees may be temporarily or permanently disabled by one or more barriers in the workplace;
- an employee’s individualized accommodation plan if any; and
- that the accommodations provided for a particular employee, if any, may not fully address a barrier that disables the employee.
3. Career development training and internal advancement
An employer who provides career development training or opportunities for internal advancement within the employer’s organization must ensure that the process for recruiting, selecting, training, promoting or redeploying an employee takes into account the following:
- that employees may be temporarily or permanently disabled by one or more barriers in the workplace;
- an employee’s individualized accommodation plan, if any; and
- that the accommodation provided for a particular employee, if any, may not fully address a barrier that disables the employee.
4. Return to work process
An employer must establish and implement a policy respecting the return to work of employees who have been absent from work due to a disability; and require reasonable accommodation in respect of one or more barriers that disable the employees on returning to work.
The return to work policy must include a description of the process the employer will follow in determining the accommodations necessary to facilitate the return to work of employees who have been absent due to a disability.
However, the provisions of The Workers Compensation Act prevail over the provisions of the AMA accessible employment standard, when applicable.
5. Communication plan and support
An employer must provide each employee with information about the following:
- the employer’s measures, policies and practices in respect to accommodating employees who are temporarily or permanently disabled by one or more barriers in the workplace; and
- any changes made to those measures, policies and practices.
Also, upon the request of an employee who is temporarily or permanently disabled by one or more barriers in the workplace, an employer must do the following:
- consult with the employee to identify the accessible formats or the communication supports needed when providing information to the employee; and
- ensure that those identified accessible formats or communication supports are used when providing information to the employee.
6. Providing training
An employer must ensure that accommodation training is provided to persons within the employer’s organization who are responsible for the following:
- recruiting, selecting or training employees;
- supervising, managing or coordinating employees;
- promoting, redeploying or terminating employees; or
- developing and implementing the employer’s employment policies and practices.
Accommodation training must include instruction about the following:
- employment opportunities may be made accessible to persons disabled by barriers,
- to interact and communicate with persons disabled by barriers, and
- to interact with persons disabled by barriers who use an assistive device or require the assistance of a support person or service animal.
In addition, the training must include a review of the The Human Rights Code, The Accessibility for Manitobans Act and the Accessible Employment Standard Regulation.
Training must be provided to an employee or a person within the employer’s organization as soon as reasonably practicable after the person is assigned the duties.
Large organizations must document the accommodation process, including the accommodation training policy, a summary of the content of the training and when training is to be provided.
7. What is an individual accommodation plan?
An employer must, upon the request of an employee who is temporarily or permanently disabled by one or more barriers in the workplace, develop and implement an individualized accommodation plan for the employee.
An individualized accommodation plan must include the following:
- any accessible formats and communication supports to be used in providing information to the employee;
- any workplace emergency response information the employer is to provide to the employee; and
- any other reasonable accommodation the employer is to make to address any barriers that disable the employee and the manner and timing within which the accommodation is to be made.
An employee must, in good faith, cooperate with the establishment and implementation of the employee’s individualized accommodation plan, which includes the following:
- by providing any relevant information that may assist the employer in the assessment of the accommodation request, including any medical reports or reports by other practitioners in the area of workplace accommodations for persons disabled by barriers;
- by complying with the accommodation plan and performing their work in accordance with the accommodation plan;
- by providing feedback to the employer with respect to the requirements of the accommodation plan;
- by participating in and cooperating with accommodation efforts on an on-going basis, including communicating with the employer if modifications to the accommodation plan are requested or if accommodation is no longer required;
- by participating in an evaluation of the employee, requested by the employer to assist the employer in determining what reasonable accommodation is required.
These plans must be reviewed and updated when required or when the following occur:
- the employee’s workspace is modified or relocated;
- the employee’s responsibilities are changed; or
- the employer becomes aware that there are other changes that impact the accommodation required.
Large employers and public sector employers must establish and implement a policy respecting individualized accommodation plans for employees who are temporarily or permanently disabled by one or more barriers in the workplace. The policy must provide the following:
- how an employee can request that the employer prepare an individualized accommodation plan for the employee;
- the employee and the possible accommodations will be assessed on an individual basis;
- the employer may request an evaluation of an employee, completed by an independent regulated health professional or other practitioner in the area of workplace accommodations for persons disabled by barriers to assist the employer in determining if reasonable accommodation is required, and that any such evaluation will be at the employer’s expense.
- The employee can request the following persons to assist in the development of the plan on the employee’s behalf:
- if the employee is represented by a bargaining agent, a representative of the employee’s bargaining agent or a person who is knowledgeable in the area of workplace accommodations for persons disabled by barriers,
- if the employee is not represented by bargaining agent, a person who is knowledgeable in the area of workplace accommodations for persons disabled by barriers
- the frequency an employee’s plan will be reviewed and updated, and that a plan will be reviewed and updated earlier upon the employee’s request;
- upon the employee’s request, the employer must provide a copy of a plan to the employee in an accessible format;
- the circumstances in which the employer may deny an employee’s request for an individual accommodation plan, and that the employer must provide the employee with written reasons why the request was denied;
- the employee’s personal information and personal health information is to be appropriately protected at all times and state the steps to be taken to protect the information.
8. Workplace emergency response information
An employer must provide an employee who is temporarily or permanently disabled by one or more barriers in the workplace with appropriate information about how to respond to an emergency in the workplace if the employee possibly faces special risks or challenges due to being disabled by the barrier. The employer must do this as soon as reasonably practicable after becoming aware the employee may need assistance in an emergency.
The workplace emergency response information must be specific to the employee’s particular barrier or barriers and the physical nature of the employee’s workspace.
The emergency response information provided to an employee must be reviewed by the employer each time the following occurs:
- the employee is moved to a different workspace;
- the employee’s workspace is modified; or
- the employer reviews the employer’s general emergency response plans and makes changes that would affect the employee’s response to an emergency in the workplace.
If an employee who receives information requires the assistance of another person in the event of a workplace emergency, the employer may, with the employee’s consent, provide the necessary information to the person designated by the employer to provide assistance to the employee.
9. Privacy obligations
Employers must protect the privacy and confidentiality of the personal information and personal health information provided by employees, and may only collect, use and disclose information as required for the purposes of the accessible employment standard regulation, unless the employee consents to the use or disclosure. This requirement is in addition to any requirements of The Freedom of Information and Protection of Privacy Act and The Personal Health Information Act, where applicable.
Consequential changes to customer service standard
For consistency among the standards, the Manitoba government will also change the Accessibility Standard for Customer Service, raising the existing threshold of 20 or more employees to 50 or more employees.
Employers have a lot of work ahead of them and should prepare by familiarizing themselves with the new requirements and starting to understand what they need to do to comply by the due dates.