Please Send Us Your Feedback on the AODA Alliances Draft Brief on the Proposed Recommendations for Revisions to the 2011 Employment Accessibility Standard that the Employment Standards Development Committee Has Circulated for Public Comment`

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities

April 27, 2018

SUMMARY

On March 20, 2018, the Ontario Government invited public comment, which it would give to the Employment Standards Development Committee. That Committee is conducting a review of the 2011 Employment Accessibility Standard, which the Government enacted under the Accessibility for Ontarians with Disabilities Act. It aims at removing and preventing workplace barriers that impede employees and job-seekers with disabilities from getting and keeping a job.

The AODA Alliance is working hard to give our input to the Employment Standards Development Committee on its proposed changes to the 2011 Employment Accessibility Standard. We think the 2011 Employment Accessibility Standard is helpful, but far, far too weak. We like some of the proposals for reforms to it that the Employment Standards Development Committee has circulated for public comment. We don’t agree with some of their other recommendations. We also feel that there are other important revisions that are needed to the Employment Accessibility Standard, beyond the ones that the Standards Development Committee has circulated for public input.

We invite your help. We have prepared a draft brief to submit to the Standards Development Committee. It is set out below. We want to know if you have any suggestions for us. We have tried our best to incorporate feedback we received most recently via email and Twitter and over the years from AODA Alliance supporters.

Please send us your thoughts by the end of Wednesday, May 2, 2018. Email us at aodafeedback@gmail.com

We hate to ask for feedback with such a tight timeline. However, the Government has said that it must receive our final brief by May 7, 2018. A huge thank you to all who have shared your ideas with us recently, or at any time in the past. Over the next week, we will work feverishly to finish off our final brief, to add anything we dig up and to address your feedback.

Our draft brief, below quotes the key points in the Government’s March 20, 2018 announcement, including the specific recommendations that the Employment Standards Development Committee proposed for the public’s comment. You may wish to read the entire March 20, 2018 Government announcement, with the full text of what the Employment Standards Development Committee has circulated for public comment. If you would like to receive an MS Word version of our draft brief, send a request to us at aodafeedback@gmail.com

For those of you who don’t have the time to read through our entire draft brief, here is a much shorter summary of it:

1. The 2011 Employment Accessibility Standard is far too weak. It will not lead employment to become accessible to employees and job-seekers with disabilities by 2025, or by any time in the distant future, even if all obligated organizations fully complied with it to the letter. It needs substantial strengthening.

2. As further explained below, the AODA Alliance agrees with a number of the draft recommendations that the Employment Standards Development Committee has proposed. However, those draft recommendations, if adopted, would not significantly improve the 2011 Employment Accessibility Standard, and would not make a significant improvement in the accessibility of employment for employees and job-seekers with disabilities.

3. The Standards Development Committee’s draft recommendations are built on an incorrect misunderstanding of the purpose or aim of its review of the 2011 Employment Accessibility Standard. This review’s aim is not merely to see if the 2011 Employment Accessibility Standard is working “as intended”, or if it will “improve” accessibility”. The Standards Development Committee should aim to see if the Employment Accessibility Standard will ensure accessible employment for employees and job-seekers with disabilities by 2025.

4. The AODA Alliance agrees with the Standards Development Committee that the long-term objective of the Employment Accessibility Standard should be strengthened. We propose wording that is stronger than the wording that the Standards Development Committee proposes.

5. Of the Standards Development Committee’s eight recommendations, four of them (Recommendations 1, 4, 5 and 7) merely call for the Government to provide better, more user-friendly public education information for employers regarding their duties owing to employees and job-seekers with disabilities. We agree with any such improvements, but also call for stronger recommendations including amendments to strengthen the Employment Accessibility Standard in these areas.

6. We agree with one of the Standards Development Committee’s recommendations that calls for an actual amendment to strengthen the Employment Accessibility Standard, Recommendation 3 regarding notice to employees and job-seekers with disabilities about an employer’s policies and practices regarding the duty to accommodate employees and job-seekers with disabilities.

7. The AODA Alliance does not necessarily agree with the Standards Development Committee’s recommendation that the Employment Accessibility Standard be amended to define the term “employee”. If such an amendment were made, we recommend that this term be broadly defined to accord with its interpretation in the Ontario Human Rights Code, that it include contractors and volunteers, and that it not be harmonized with other employment legislation (since such harmonization is likely not feasible).

8. The AODA Alliance does not agree with the Standards Development Committee’s Recommendation 6, calling for amendments to the Employment Accessibility Standard regarding an employer’s duty to provide employees and job-seekers with disabilities with information on individualized emergency procedures.

9. The AODA Alliance does not agree with the Standards Development Committee’s Recommendation 8, which would defer for five years any review of the Employment Accessibility Standard’s provisions on accommodating workers with disabilities in their return to work.

10. The Employment Standards Development Committee should go much further in its recommendations, so that the Employment Accessibility Standard can live up to the goals of the AODA. The Employment Accessibility Standards core focus is on putting in place formal procedures in each organization for an employee with a disability to request and receive an individualized workplace accommodation. It needs to be substantially expanded to include requirements for the systematic identification, removal and prevention of recurring employment barriers within an obligated organization, such as barriers in the built environment, in choice of location for off-site office events, office furniture and equipment, and job descriptions. With proper action on this front, the workplaces of 2025 can be barrier-free. Without this, employers will continue to leave employment barriers in place, and will continue to create new ones.

11. The standard should include provisions on addressing employment barriers in the context of a unionized workplace where there is a collective agreement.

12. The standard should be expanded to implement in larger organizations a process for addressing in a fair and timely way the cost of barrier-removal and prevention and of individual accommodation.

13. The standard should be expanded to create specific added measures to address the Ontario Government and Ontario Public Service as Ontario’s largest employer. This should include, among other things, strengthened provisions to ensure that the goods, services and facilities that the Ontario Government procures for use in the Government and Ontario Public Service are accessible to employees with disabilities.

MORE DETAILS

April 27, 2018 Draft AODA Alliance Brief on the Employment Standards Development Committee’s Proposed Revisions to the 2011 Employment Accessibility Standard

Accessibility for Ontarians with Disabilities Act Alliance
United for a Barrier-Free Ontario for All People with Disabilities www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance

DRAFT ONLY
NOTE: This is only a draft and has not been approved. Please send feedback on it by Wednesday May 2, 2018 via email: aodafeedback@gmail.com

Brief to the Ontario Employment Standards Development Committee on Its Draft Recommendations for Revisions to the 2011 Employment Accessibility Standard

Via email at aoda.input@ontario.ca
To: Laura McKeen, Chair
Employment Standards Review Feedback
Accessibility Directorate of Ontario
777 Bay Street,
6th Floor, Suite 601A
Toronto, ON
M7A 2J4

April 27, 2018

1. Introduction

This is the AODA Alliance’s brief to the Employment Standards Development Committee on its draft recommendations for revisions to the 2011 Employment Accessibility Standard. The Ontario Government posted those draft recommendations online for public forum on March 20, 2018.

The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Our mission is:

“To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act.” To learn about us, visit: http://www.aodaalliance.org.

Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated more than ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committees work. We draw our membership from the ODA Committee’s broad, grassroots base. To learn about the ODA Committee’s history, visit: http://www.odacommittee.net

The AODA Alliance welcomes this opportunity offer its input. We also repeat our offer to make a presentation directly to the Employment Standards Development Committee on our recommendations. The Transportation Standards Development committee took us up on that offer. We hope this Standards Development Committee will do the same.

The AODA Alliance has played a leading and highly-visible role in Ontario in raising a wide range of accessibility issues, including in the employment context. We have connections across Canada and internationally with, and are regularly consulted by accessibility advocates and governments as they grapple with how to tackle these issues.

Despite this, we regret that the Accessibility Directorate of Ontario did not include us in its pre-consultation activities that led to the focus areas of the Employment Standards Development Committee’s work. The Government’s March 20, 2018 posting included:

“Potential focus areas for the review were based on pre-consultation feedback ”

That was the first we heard of that pre-consultation. In contrast, the Accessibility Directorate of Ontario included us in its pre-consultation on the Health Care Accessibility Standard. We submitted a detailed brief to that pre-consultation.

As well, the Accessibility Ministry did not consult us in the development of its “Access Talent” strategy on improving employment for people with disabilities. We address that strategy further, later in this brief.

2. Overview of this Brief

The Accessibility for Ontarians with Disabilities Act (AODA) requires the Government to lead Ontario to become fully accessible by 2025. The Government must enact and effectively enforce all the accessibility standards needed to ensure that the AODA’s goal is achieved. An accessibility standard is a provincial regulation that spells out what an obligated organization must do to prevent and remove accessibility barriers and that sets time lines for this action.

In 2011, the Ontario Government enacted the Integrated Accessibility Standards Regulation (IASR) under the AODA. It includes, among other things, provisions addressing disability barriers in access to employment in Ontario. Under the AODA, the Government was required to appoint a Standards Development Committee to review that standard, and to recommend any revisions needed to ensure that employment becomes fully accessible to people with disabilities in Ontario by 2025.

In 2017, the Ontario Government appointed a new Employment Standards Development Committee to review the provisions of the 2011 Employment Accessibility Standard, and to make recommendations on any needed improvements. On March 20, 2018, the Ontario Government made public the initial or draft recommendations that the Employment Standards Development Committee has proposed, for public comment.

The AODA Alliance has solicited input from its supporters through its website, its mass email list, and repeatedly, on Twitter. Drawing on that feedback and on our extensive involvement in advocacy on accessibility issues in Ontario, this brief provides our feedback on those draft recommendations. Our feedback is summarized as follows:

11. The standard should include provisions on addressing employment barriers in the context of a unionized workplace where there is a collective agreement.

12. The standard should be expanded to implement in larger organizations a process for addressing in a fair and timely way the cost of barrier-removal and prevention and of individual accommodation.

3. Overall Problems with the 2011 Employment Accessibility Standard

Before turning to the Employment Standards Development Committee’s recommendations, it is important to identify the problems with the 2011 Employment Accessibility Standard while well-intentioned, and helpful to a point, the 2011 Employment Accessibility Standard is far too weak. It will not lead employment to become accessible to employees and job-seekers with disabilities by 2025, or by any time in the distant future, even if all obligated organizations fully complied with it to the letter. It needs substantial strengthening.

The 2011 Employment Accessibility Standard ostensibly implements the duty to accommodate employees with disabilities that has existed under the Human Rights Code since 1982. This is not a new obligation. Yet, s. 21 of the Employment Accessibility Standard provides that unless otherwise specified, small public-sector organizations had from 2011 (when the Employment Accessibility Standard was enacted) until 2015 under the AODA to comply (3.5 years). Large private sector organizations were given until 2016 (4.5 years). Small private sector organizations were given until 2017 (5.5 years). Yet any number of the IASR’s requirements could readily have been implemented years earlier by these organizations.

For example, no organization large or small needs three, four or five years to start notifying job applicants with disabilities that they can request accommodation in the recruitment process (s. 23), or to start to tell a successful job applicant with a disability about the organization’s policies for accommodating employees with disabilities (s. 24) or about the organization’s policies for accommodation supports (s. 25), or to consult with employees with disabilities on request, on needed communication supports (s. 26).

Because the 2011 Employment Accessibility Standard mainly seeks to implement an employer’s duty under the Human Rights Code to accommodate the needs of job-seekers and employees with disabilities, it is troubling that in several places, it only requires an employer to “take into account” an employee’s accessibility needs, rather than a stronger requirement that the employer shall meet that employee’s accessibility needs except where it is impossible to do so without undue hardship to the employer. Merely taking into account an employee’s accessibility needs is not sufficient. An employer might argue that they took these into account, by simply thinking about them, without actually doing anything about them, even when doing something about them would cause the employer no undue hardship. From the enforcement perspective, it is harder to prove that an employer didn’t think about an employee’s accessibility needs. It is easier to prove that the employer did not in fact provide a needed accommodation.

Here are several examples of this deficiency. Section 23 provides in part:

“(2) If a selected applicant requests an accommodation, the employer shall consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicants accessibility needs due to disability.”

Section 25 includes:

“25. (1) every employer shall inform its employees of its policies used to support its employees with disabilities, including, but not limited to, policies on the provision of job accommodations that take into account an employees accessibility needs due to disability.”

Section 28 includes:

“(2) the process for the development of documented individual accommodation plans shall include the following elements:

8. The means of providing the individual accommodation plan in a format that takes into account the employees accessibility needs due to disability.”

Section 30 includes:

“30. (1) An employer that uses performance management in respect of its employees shall 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.”

Section 30(1) provides:

“An employer that uses performance management in respect of its employees shall 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.”

Section 31(1) states:

“An employer that provides career development and advancement to its employees shall 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.”

Section 32(1) specifies:

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

As addressed more extensively later in this brief, the 2011 Employment Accessibility Standard does not specify in detail the barriers that need to be removed and prevented in the workplace, or the measures to be taken to remove and prevent them, or time lines for doing so. That would have reduced the need for individualized workplace accommodation in a number of cases. as such, over the 2011 Employment Accessibility Standard, the Employment Accessibility Standard did not do anything to stop or slow down employers from creating new employment barriers, or perpetuating or exacerbating existing ones.

In 2014, former University of Toronto Law Dean Mayo Moran conducted the second mandatory Independent Review of the AODA. In her final report, she generally remarked on problems with the existing AODA accessibility standards (which included, at the time, the 2011 Employment Accessibility Standard).

It is important for the Employment Standards Development Committee to be alive to and to build upon the key passages in the Moran Report as it bears on the 2011 Employment Accessibility Standard, and to ensure that its recommended revisions to that standard rectify the concerns there found. Here are key extracts from the Moran Report on this topic. We recommend a read of the full report.

* Barriers to employment received considerable emphasis during the consultations. Individuals and organizations discussed the fundamental importance of a job to quality of life. Viewed in this context, the unemployment of people with disabilities is harmful, not only because it causes poverty, but also because it means decisions in government, education, health care, business and other fields are made without their input. It is easy to ignore or forget about us, as one presenter at a Toronto session said.

* The mental health community feels strongly that mental health and other non-visible disabilities should be better integrated into the content of standards. For example, it was suggested that the Employment standard should provide clear guidelines for accommodating employees with mental health disabilities.

* At present, there are many exemptions under the IASR for organizations with under 50 employees. For example, they are exempt from requirements to prepare multi-year accessibility plans, make their websites accessible, develop a written process for employment accommodation, provide accessible exterior paths of travel, prepare written accessibility policies and file compliance reports, among other obligations. It was suggested that one reason the AODA has not lived up to its potential is the number of organizations that are exempt from such obligations.

* Employment

Several participants argued that the Employment Standard in the IASR should be extended to cover volunteers and other unpaid workers. Mental health patients often perform unpaid work as a pathway to employment and the Ontario Human Rights Commission has made it clear that the Human Rights Code applies to work-like contexts.

Business and disability stakeholders both observed that the standards address the stages in the employment lifecycle but leave out measures to actually promote employment. Disability groups proposed creation of an accessibility employment centre under the standard. This would develop a database on the skills and qualifications of people with disabilities helping them to find jobs and employers to find candidates. A business group tabled a similar proposal for an employment hub that would link multiple employers with people with disabilities seeking work. More generally, a number of participants noted the importance of increasing the employment of persons with disabilities as a key element in ensuring full inclusion.

Business and disability stakeholders both observed that the standards address the stages in the employment lifecycle but leave out measures to actually promote employment.

* Several participants stressed that current AODA standards do little to remove existing barriers, though the AODA calls for this, leading people with disabilities to seek facility retrofits in particular through the Human Rights Tribunal. A business group suggested removing disputes over retrofits from the realm of human rights and coming up with an objective standard for the accessibility of buildings to be applied province-wide.

The Review was told that a number of standards have weak or vague requirements that are out of step with the Human Rights Code. Among the examples cited were:

Complete exemption of smaller organizations from many technical requirements, such as accessible websites.

Exemption of volunteers from the Employment Standard.

Where not practicable exemptions such as those concerning websites, accessibility in procurement, or external paths of travel.

Exemption of transit vehicles in a fleet as of July 1, 2011.

Disability stakeholders contend that standards that fall short of the undue hardship requirements of the Code should be amended through the Accessibility Standards Advisory Council review process. Another suggestion was to involve the Ontario Human Rights Commission more extensively in the process of standards development.

4. Principles That The Employment Accessibility Standard Should Fully Implement

The Employment Accessibility Standard should effectively implement and reflect these principles:

1. These major steps must be undertaken to fulfil obligations under the Human Rights Code regarding employment:

a) Existing workplace barriers must be identified and removed along reasonable time lines;

b) New employment barriers must not be created;

c) An employer has a duty, when designing, acquiring, or updating equipment, job descriptions, policies or practices in the workplace, or premises for work to occur, to fully take into account the needs of employees and job applicants with disabilities, so that they can fully participate in employment on a footing of equality;

d) Employees and job applicants with disabilities should have their disability-related workplace needs accommodated where needed, to enable them to fully participate in employment based on their individual merits, except where the employer can prove that it is impossible to accommodate them without undue hardship;

e) The duty to accommodate includes a duty to investigate solutions to an employees accommodation needs. The employer may not just consider specific accommodations that the employee or job applicant requests. If, for proper reasons, the employer decides that a solution that the employee requests cannot be implemented because it will cause undue hardship to the employer, the employer has a duty to investigate other solutions until it finds one that solves the workplace accommodation need, without undue hardship;

f) An employer, and where present, a union, has a duty to provide employees and job applicants with disabilities, a welcoming environment within which to seek and receive needed workplace accommodations;

2. This Standard, including specific actions and time lines under it, should not be designed on an incorrect assumption that employers are starting with this activity on Day One, after the Standard goes into operation. Employers have been legally obliged to effectively identify, remove and prevent workplace barriers to full participation, and to accommodate the needs of employees with disabilities since 1982, when the Ontario Human Rights Code was amended to prohibit employment discrimination because of a mental or physical disability. This is not a new obligation which the AODA or the Employment Accessibility Standard created in 2005 or 2011.

3. Within any organization, identifying, removing and preventing workplace barriers, and providing needed workplace accommodation, is everyones business. Responsibility to remove and prevent workplace barriers, and to provide effective workplace accommodation belongs to all those within an organization, not just to an employee with a disabilitys direct supervisor or the human resources department.

4. If the workplace is unionized, the union, and not just the employer, can have responsibility for the identification, removal and prevention of workplace barriers, such as those that are rooted in a collective agreement. A union as well as the employer must help ensure that a collective agreement doesnt create or perpetuate workplace barriers. No one, whether an employer or union, may take actions that impede effective accommodation of employees with disabilities.

5. The duty to accommodate under the Human Rights Code requires serious and substantial efforts by the employer, and where relevant, by the union. The undue hardship defence is a tough test for an employer to meet. An employer must show it is impossible to do anything more to accommodate the employee or job applicant without undue hardship to the employer. Undue hardship must be something much more than inconvenience to the organization. It is the employers burden to prove that further accommodation of the employees needs will cause undue hardship. The Human Rights Code presumes that accommodation is feasible, unless the employer can prove the contrary.

6. The cost to an organization of providing a workplace accommodation is a relevant factor in assessing whether a needed accommodation imposes undue hardship on an employer. These principles apply to any consideration of whether the cost of an accommodation amounts to undue hardship to the organization:

a) The cost of providing a workplace accommodation is a regular cost of doing business, and not some special cost. It usually would be tax deductible.

b) Offsetting any cost concerns is the added benefit to the organization that comes from expending those funds on that workplace accommodation. If a retail establishment makes it front door wheelchair accessible to accommodate an employee with a mobility disability, this also enables the store to benefit from additional customers, i.e. those using wheelchairs, and those with a child in a baby stroller.

c) The cost of accommodation can influence how long an organization can take to provide a needed workplace accommodation. If the cost is too much to absorb in an individual year, that doesnt mean the organization need never do anything to accommodate. It may be able to spread that cost over two years, without undue hardship. That in turn may justify a longer time line for delivering the accommodation but doesnt justify a refusal to do anything ever to accommodate.

d) If an organization needs time to effectively implement a long-term accommodation to the needs of an employee with a disability, the organization also has a duty in the meantime to provide interim accommodation, unless the employer can show that even providing an interim accommodation would cause it undue hardship.

5. Significantly Understating the Aim of the Standards Development Committee’s Review of the Employment Accessibility Standard

We are concerned that the Employment Standards Development Committee has been working under a significant misunderstanding and underestimation of the goal of its review of the 2011 Employment Accessibility Standard. From our overall understanding of the process, we anticipate that this likely emanated from the Accessibility Ministry and the Accessibility Directorate of Ontario, and was not a creation of the Standards Development Committee itself. Even if it had originated from the Standards Development Committee and not the Accessibility Directorate of Ontario, the Accessibility Directorate of Ontario has so intensively involved itself in the work of Standards Development Committees that it should have set the record straight. To proceed on this understatement of the Standards Development Committee’s end goal is to weaken the entire review of the 2011 Employment Accessibility Standard.

The introduction to the Ontario Government’s March 20, 2018 online public announcement, inviting this input, which the Employment Standards Development Committee likely did not write, included:

“We are updating our accessible employment standards to make employment more accessible to people with disabilities.”

It also states regarding the Employment Standards Development Committee:

“The committee works to ensure employment is more accessible to people with disabilities.”

Later, the summary of the draft recommendations includes:

“The SDC recognizes the importance and priority of reducing barriers ”

Taken together, these passages dramatically understate and water down the aim of this review and of the Employment Accessibility Standard. The aim is not merely to make employment “more accessible” for people with disabilities, or to reduce barriers in employment. The AODA requires the aim to be to make employment “accessible” for people with disabilities.

The difference is not just a matter of quibbling over words. If a handful of workplace barriers are removed, employment would become “more accessible” in Ontario. Yet that may not make any real difference for employees and job-seekers with disabilities, if Ontario workplaces continues to have too many disability barriers.

Similarly, the posting waters down the goal of this review of the Employment Accessibility Standard where it states:

“Under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), we must review accessibility standards every five years to determine whether they are working as intended or need adjusting.”

That substantially understates the goal of this mandatory review of the 2011 Employment Accessibility Standard. As noted above, this review’s purpose is to ascertain whether the Employment Accessibility Standard is working sufficiently to ensure that employment becomes fully accessible to people with disabilities by 2025, the AODA’s goal. This Review should recommend improvements to ensure that the Standard will achieve that goal.

It is not sufficient for the Standards Development Committee to just ask if the Employment Accessibility Standard is working “as intended.” By that lesser and weak approach, the Employment Accessibility Standard would be fine, and would need no improvements, if it led employers to merely do whatever the Employment Accessibility Standard spelled out, even if that left employment and workplaces in Ontario full of disability accessibility barriers, now and even long after 2025. If the original intent of the 2011 Employment Accessibility Standard fell below what the AODA requires for full employment accessibility by 2025, neither we nor the Employment Standards Development Committee should be locked into or handcuffed by that insufficient goal. As this brief amply documents, the 2011 Employment Accessibility Standard, while helpful, was not capable of ensuring that employment and workplaces will become fully accessible by 2025, or indeed, ever.

It appears that this seriously flawed “working as intended” language emanates from the Accessibility Directorate of Ontario. Substantially the same language was included in the initial draft recommendations of the Transportation Standards Development committee that were circulated last year for public comment.

We also note from the Ontario Government’s March 20, 2018 posting that the Accessibility Minister’s Mandate Letter to the Employment Standards Development Committee may have set too restrictive a focus for the Employment Standards Development Committee. The Government’s March 20, 2018 posting includes:

“Under this framework, the Minister asked that the review focus on requirements for sectors that were in effect for more than 24 months, as well as to identify any gaps that may remain in the standards, and to consider all possible solutions and tactics, including non-regulatory approaches. The review kicked off during the last year of implementation of the Standard, effective for small organizations January 1st, 2017. Potential focus areas for the review were based on pre-consultation feedback and included: clarity of requirements for individual accommodation plans desire for clear guidance materials
disclosure of disability as activation for support and requirements to apply”

The foregoing areas are, of course, worth considering. However, the Standards Development Committee should not limit itself to those areas. As addressed further below, key disability barriers in employment are left out of these draft recommendations, but need to be tackled.

As well, the Standards Development Committee should consider the Employment Accessibility Standard as it applies to all sectors, not just those for whom the 2011 accessibility standard has been in operation for 24 months. The disability accessibility barriers we address below are obvious. We need no more experience to know that they are employment barriers. As well, all employers have now had fully seven years since the 2011 Employment Accessibility Standard was enacted.

The Ontario Human Rights Code disability provisions which it largely aims to implement have been in force since 1982, fully 35 years. The duty to accommodate employees and job-seekers with disabilities is not some dramatic new innovation in employment in Ontario law. It has been very substantially clarified by the Supreme Court of Canada, lower courts, human rights tribunals and labour arbitrators.

Moreover, the AODA’s 2025 deadline for full accessibility is looming closer and closer. It is less than seven years away. Yet people with disabilities continue to face cruel and unfair high unemployment rates. Former Lieutenant Governor David Onley has repeatedly said that the unemployment rate facing Canadians with disabilities is not only a national crisis It is a national shame. The plight of excessively high unemployment facing people with disabilities was echoed by the Partnership Council on Employment in Ontario for People with Disabilities that the Ontario Government appointed in 2014.

As such, the can cannot be kicked down the road to the next AODA review of the Employment Accessibility Standard. That review is likely not to start until 2023 or 2024. By then, there will not be enough time to enact regulatory changes that will go into effect and can be fully implemented by 2025.

An AODA Standards Development Committee is not restricted to only address those things that a minister’s Mandate Letter outlines. It is open to the Employment Standards Development Committee to recommend any measures it considers advisable. Especially because the 2025 deadline is creeping up on us, it is all the more important for the Employment Standards Development Committee to bring forward any recommendations that it considers helpful, whether or not they fall outside the minister’s Mandate Letter.

6. Our Analysis of the employment Standards Development Committee’s Specific Recommendations for Revisions to the 2011 Employment Accessibility Standard

a) Review of the Long-term Objective of the Employment Accessibility Standard

The Employment Standards Development Committee was mandated to re-examine the 2011 Employment Accessibility Standard’s longterm objectives. The March 20, 2018 Government posting states the following about the original longterm objective of the 2011 Employment Accessibility Standard:

“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 Government’s March 20, 2018 posting incorrectly states that an accessibility standard’ longterm objectives are not set out in the accessibility standard itself. In fact, nothing would prevent the Government from including that longterm objective in an accessibility standard. It is far preferable to include it in that regulation, so that it will serve as a guide to the regulation’s interpretation.

The Employment Standards Development Committee recommends that this longterm objective be revised to read 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.

We agree that the original longterm objective is too weak and needs to be strengthened. It in fact is so circular in the way it was written that it really says nothing beyond what the AODA itself says.

We also agree that the Employment Standards Development Committee’s proposed new wording is an improvement. However, we believe it does not go far enough to fulfil the AODA’s goals insofar as employment is concerned. Under the Standards Development Committee’s new wording, any removal or prevention of employment barriers would be enough to fulfil that objective, even if employment and workplaces remain largely inaccessible to many people with disabilities.

The AODA requires that people with disabilities, including employees and job-seekers with disabilities, experience full accessibility to employment on or before 2025. Thus, the goal of the employment accessibility Standard should be the achievement of barrier free workplaces and full accessibility to employment for persons with disabilities on or before 2025.

It is therefore recommended that:

*#1. the Standard should be amended to include a provision that states that the purpose of the Standard is to ensure that employment and workplaces in Ontario become barrier free and that people with disabilities, including employees and job-seekers, have equal access to employment on or before 2025.

b) Standards Development Committee Recommendation 1: Improved clarity with the Ontario Human Rights Code

The Employment Standards Development Committee expressed a concern that a number of employers are confused about the relative roles of the Ontario Human Rights Code, as it relates to employment on the one hand, and the provisions of the 2010 AODA Employment Accessibility Standard on the other. The Employment Standards Development Committee’s first recommendation is as follows:

“The SDC recommends the government and the Ontario Human Rights Commission (OHRC) review and strengthen guidelines and clarification for employers with regard to the differences between the Ontario Human Rights Code and the AODA’s Employment Standards.”

This is not a recommendation to revise the Education Accessibility Standard. If anything, it is simply a recommendation that the Accessibility Directorate of Ontario and the Ontario Human Rights Commission produce new materials that will more fully and effectively explain the relationship of the Ontario Human Rights Code on the one hand, and the AODA Employment Accessibility Standard on the other, in straightforward language for employers and others.

We certainly take no exception to this recommendation, and support the creation and wide distribution of any materials that will better inform employers on their legal duties owing to employees and job-seekers with disabilities. That the Employment Standards Development Committee received feedback showing a need for this regrettably shows that the Accessibility Directorate of Ontario and Ontario Human Rights Commission have not effectively discharged their responsibilities in this area, even though two successive AODA Independent Reviews have identified the pressing need for substantially improved efforts by the Government to equip obligated organizations to understanding their obligations under the AODA. This was the recommendation of the 2010 report of the first AODA Independent Review by Charles Beer and the 2014 report of the second AODA Independent Review, conducted by Mayo Moran. It is a strong indication that there are serious problems with the Ontario Government’s implementation of the AODA, that in 2018, almost 13 years after the AODA’s enactment, it has required another AODA body, this time the Employment Standards Development Committee, to again try to bring this need home to the Government.

It is all the more troubling that confusion remains over something that is actually quite simple. The Ontario Human Rights Code imposes a duty on employers to accommodate the disability-related workplace needs of employees and job-seekers with disabilities. The AODA Employment Accessibility Standard cannot and does not reduce that duty one iota.

The AODA Employment Accessibility Standard sets a serious of procedures in place to help ensure that employers fulfil that duty to accommodate employees and job-seekers with disabilities.

The Ontario Human Rights Code imposes a general duty on employers to remove and prevent employment and workplace barriers against employees and job-seekers with disabilities, up to the point of undue hardship to the employer. If an employer failed to remove or prevent an employment or workplace disability barrier, that employer would have the burden to prove that it was impossible to remove or prevent that barrier, without suffering an undue hardship.

The AODA Employment Accessibility Standard can also spell out in detail the specific steps that an employer must take, and the time lines for action, to remove or prevent specified employment barriers. The 2011 Employment Accessibility Standard for the most part does not do this. Later in this brief we propose revisions to fill that serious gap in this accessibility standard.

Finally, s. 38 of the AODA makes it clear that if any two laws provide different levels of protection for people with disabilities, the stronger law prevails. Section 38 of the AODA provides:

“38. If a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.”

Therefore, if the AODA Employment Accessibility Standard includes a provision that is weaker than the Ontario Human Rights Code, an employer still must fully obey the strong requirement in the Ontario Human Rights Code. If the AODA Employment Accessibility Standard requires more action, or faster action, for employees and job-seekers with disabilities than does the Ontario Human Rights Code, then the AODA Employment Accessibility Standard takes precedence.

The March 20, 2018 Government posting is partially incorrect where it states:

“Where the Ontario Human Rights Code and other employment laws come into conflict, the Code will prevail.”

If the AODA, or an accessibility standard enacted with it, guarantees greater rights to people with disabilities than the Ontario Human Rights Code, then the AODA prevails.

The AODA was enacted after a decade of grassroots disability advocacy from 1994 to 2005 by the AODA Alliance’s predecessor, the Ontarians with Disabilities Act Committee. Its aim is to effectively implement the rights which the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms guarantee to people with disabilities, without their having individually to litigate against each disability barrier they face, one at a time, under the Ontario Human Rights Code or the Charter of Rights.

We had offered to make a presentation to the Employment Standards Development Committee some months ago. We would welcome any opportunity to help clear up any confusion in this area.

An AODA standard is most effective when it meets or exceeds the relevant requirements under the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms. That would enable an employer to be able to rest in comfort that so long as they have complied with the AODA standard, they have met or exceeded their duties under the Code and the Charter. To date, many if not most AODA accessibility standards do not live up to the Code and The Charter’s accessibility requirements.

We therefore recommend that:

#2. The standard should be revised to ensure that its measures for removing and preventing disability barriers, and the related time lines always meet or exceed the employer’s duties under the Ontario Human Rights Code and, where applicable, the Canadian Charter of Rights and Freedoms.

If employers are having difficulty finding out information that makes the message clear and obvious, we recommend that the Employment Accessibility Standard should have the relationship between it and the Ontario Human Rights Code written write in the standard. The standard is only about 3 pages long now. It won’t be hard to find. It does not matter that the AODA already says this. If employers are most likely to look to the wording of the standard itself, this information should be right there, in the standard itself.

We therefore recommend that:

#3. The standard should be amended to spell out in clear language the relationship between its requirements and those of the Ontario Human Rights Code. For example, the standard should state in as strong and clear terms as possible that nothing in it reduces or diminishes an employers duties under the Human Rights Code, including the duty to accommodate the workplace needs of job-seekers and employees with disabilities.

For obligated organizations that have a website, it would be worthwhile for their policies and procedures, as required in the Employment Accessibility Standard, to be posted online. This will help employees and job-seekers with disabilities find it. It will also motivate the obligated organizations to take it more seriously. It will help educate others working at that organization. Finally, it will help crowd-sourced AODA enforcement, since anyone in the public, or the Government itself, can visit the website and see if the required policies are posted, and if their contents are sufficient.

We therefore recommend that:

#4. The standard should be amended to require that obligated organizations of a sufficient size, that have a website are required to post their required policies and procedures on employment accessibility and accommodation on their website, if they have a website.

c) Standards Development Committee Recommendation 2: Scope and Interpretation

The Employment Standards Development Committee’s second recommendation is as follows:

“The SDC believes a gap exists because a definition of employee is not included in the AODA and Integrated Accessibility Standards Regulation (IASR). The SDC recommends a definition of employee 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 employeremployee relationship.

Note: The SDC intends that any definition of employee added to the AODA or IASR harmonize with existing employment legislation.”

The Government’s March 20, 2018 posting notes that there is now no definition of “employee” in the AODA or the 2011 Employment Accessibility Standard. Unfortunately, the Employment Standards Development Committee did not give specifics on what problems have arisen due to the lack of a definition of “employee” in the Employment Accessibility Standard, or how frequently that problem arises, or what adverse impact it has had, if any, either on employers or on employees and job-seekers with disabilities. There is also no indication whether the Accessibility Directorate of Ontario has tried to address this through online and other compliance guides and other resources. We note that the Ontario Human Rights Code has imposed strong and sweeping human rights obligations of equal treatment with respect to employment for decades, without that legislation including a statutory definition of “employment.”

If a definition of “employee” were included in the Employment Accessibility Standard, it needs to be a broad one, one that is at least as broad as the term “employment” as it has been interpreted in the Ontario Human Rights Code.

We do not agree with the Employment Standards Development Committee’s suggestion that this definition should also be harmonized with other employment legislation. Terms like “employee” may be defined in different ways in different laws, because different laws may be enacted to serve different purposes. To employers, it is understandable that they would rather have to deal with one all-purpose definition of “employee” for all legislation. However, that may simply not be workable.

Here, the purpose of the AODA is best served by a broad definition of “employee”, one that prevents obligated organizations from evading the AODA by the way they construct their relationship with those who work for them. It would be best if it includes contractors, to the extent that the Ontario Human Rights Code similarly covers contractors, in order to serve this same goal.

We therefore recommend that:

#5. If the Employment Accessibility Standard were to be amended to include a definition of “employee,” then:

a) It should be a very broad and non-exhaustive definition, one that is at least as broad as the way “employee” is interpreted under the Ontario Human Rights Code.

b) Contrary to the Employment Standards Development Committee’s draft recommendations, the definition of “employee” need not be harmonized with other employment legislation, since there is no one omnibus definition of “employment” in all Ontario legislation.

c) Any definition of “employee” should include contractors, to prevent evasion of this accessibility standard.

The Employment Standards Development Committee’s draft recommendations also note that the Employment Standards Development Committee considered whether to recommend that the Employment Accessibility Standard be amended to cover volunteers, and not just paid employees. It states:

“A vote was held but the motion did not pass.”

There is no indication of how many members voted for or against this proposal. The minister’s terms of reference for Standards Development Committees unfortunately require that 75% of a quorum vote in favour of a recommendation, for it to pass. On April 23, 2018, we wrote Accessibility Minister Tracy MacCharles to object to that 75% voting requirement. We there showed that a simple majority would better serve the AODA’s purposes.

The duty to accommodate and barrier access can have important roles to play in the volunteer context. It may require greater flexibility, due to the difference between volunteer work and paid work. It is important to cover accessibility in volunteer work, since there are times when people with disabilities need to establish themselves via volunteer work, as a way to work towards securing paid employment.

We therefore recommend that:

#6. The standard should be revised to extend it to volunteer work, in terms that can provide more circumstance-specific flexibility for obligated organizations, as compared to paid employees.

d) Standards Development Committee Recommendation 3: Recruitment, General (Section 22)

The Employment Standards Development Committee’s draft recommendations’ third recommendation is as follows:

“In order to fully inform job applicants, Section 22 notice regarding availability of accommodations throughout recruitment by employers, should be expanded to include notice of availability of accommodation during employment. The policy intent is to amend Section 22 notice and not to expand other requirements of the Employment Standards.”

Section 22 of the 2011 Education Accessibility Standard, to which this recommendation refers, provides as follows:

“22. Every employer shall notify its employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes.”

We agree with this recommendation. We therefore recommend that:

#7. As the Employment Standards Development Committee’s draft recommendations propose, s. 22 of the Education Accessibility Standard should be amended to require an employer to notify job applicants and the public of the employer’s job applicants with disabilities about the availability of accommodation for applicants with disabilities in its recruitment processes and its entire employment life cycle.

The Employment Standards Development Committee’s draft recommendations raise a concern that an employer’s artificial intelligence-based systems may end up screening out job applicants due to their disabilities. The Employment Standards Development Committee’s draft recommendations include:

“The SDC also noted the importance of accessible notice and accessible job board websites. For example the SDC discussed inaccessible job ads and job application software. SDC members raised the potential of software having embedded algorithmic bias which discriminates against persons with disabilities. SDC members recognized the importance of having these systems remove bias as they may scan out qualified candidates. The SDC suggested that the Standards Development Committee which is tasked with developing the Information and Communications standards under the AODA consider this issue.”

We share this concern and commend the Employment Standards Development Committee for raising it. However we propose that it is the Employment Standards Development Committee, and not the Information and Communication Standards Development Committee, that should address it. Machine-based resume-screening is not an information and communication issue. It is a potential barrier in the employer’s decision-making process over whom to interview for a job, or whom to hire. The Employment Accessibility Standard aims to ensure, among other things, that decisions over whom to hire are free from disability barriers and discrimination

We therefore recommend that:

#8. The standard should be amended to include measures to ensure that machine-based and artificial intelligence-based systems used to screen job applicants in the hiring process are free from disability barriers and discrimination.

e) Standards Development Committee’s Draft Recommendation 4: Recruitment, assessment or selection process (Section 23)

The fourth recommendation in the Employment Standards Development Committee’s draft recommendations provides:

“The SDC recommends that guidelines and best practices should be developed on how to make the recruitment, assessment and selection processes and materials inclusive by design.”

Section 23 of the 2011 Employment Accessibility Standard now provides:

“23. (1) During a recruitment process, an employer shall 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.

(2) If a selected applicant requests an accommodation, the employer shall consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicants accessibility needs due to disability.”

Here again, the Standards Development Committee is not recommending any revision to the Employment Accessibility Standard. The standard here merely states what the Ontario Human Rights Code has in effect required since 1982.

The Standards Development Committee It is instead calling on the Government to provide more and better training materials for employers. To explain this, the Standards Development Committee stated:

“The SDC did not choose to propose a regulatory recommendation to address this gap because the committee felt the issue primarily dealt with attitudinal bias that requires a broader cultural shift beyond regulation (e.g., guidance, education and awareness).”

The fact that a recurring employment barrier can be traced to attitudes among some employers does not, of itself, say there is no room for an appropriate addition to the Employment Accessibility Standard, beyond any greater expansion in resources available to employers.

We therefore recommend that:

#9. The Standards Development Committee should investigate what recurring disability barriers occur at the recruitment stage of the employment life cycle, and recommend concrete measures to remove and prevent those barriers.

f) Recommendation 5: Notice to successful applicants (Section 23 & 24)

The fifth recommendation in the Employment Standards Development Committee’s draft recommendations is as follows:

“Too often employers and candidates do not know when or how to have open and successful conversations to accommodate an individuals needs. In order to address this gap the SDC recommends the government should review, strengthen and better promote guidelines and best practices to clarify requirements under sections 23 and 24.”

We set s. 23 of the Employment Accessibility Standard out above. Section 24 of the Employment Accessibility Standard provides:

“24. Every employer shall, when making offers of employment, notify the successful applicant of its policies for accommodating employees with disabilities.”

Here again, any additional educational supports for employers can be helpful. However, the Standards Development Committee’s discussion identifies a problem which is much easier to solve. The Standards Development Committee was concerned about employers who don’t know which employees may have a disability, and people with disabilities who may be reluctant to disclose their disability.

An obvious solution is to amend ss. 23 and 24 to require employers to let all job applicants and those who are hired about the employer’s policies and preparedness to fulfil the duty to accommodate any employees with disabilities. If the job applicant or employee, so notified, has a disability, they need not disclose it to receive this information. If they have no disability, it is still doubly helpful to receive this information as they first connect with the employer. First, if they acquire a disability later while working there, it will be helpful for them to have known since Day 1 with that organization that it provides a welcoming environment for workplace accommodation. No one can predict on Day 1 who will later acquire a disability.

Second, if they never themselves need a workplace accommodation, they will have been alerted from Day 1 about the importance of workplace accommodation. This will help ensure that the workplace is a welcoming environment for all those employees who, at some time or other need disability-based accommodation.

We therefore recommend that:

#10. Sections 23 and 24 of the standard should be amended to require that all job applicants and employees be notified of the availability of workplace accommodations, referred to in those sections, whether or not they appear to have a disability or have disclosed that they have a disability.

g) Standards Development Committee’s Recommendation 6: Workplace emergency response information (Section 27)

The Standards Development Committee’s fifth draft recommendation provides:

“The desired outcome of Section 27 is to ensure accessible emergency response information is available to all employees with disabilities in accessible formats, upon request.

Section 27 makes references to individualized emergency response information. The SDC believes the use of the word individualized may result in obligated organizations unnecessarily developing individualized emergency response plans. The SDC recommends the word individualized be removed from Section 27.

Questions of individualized emergency plans and emergency accommodations needs are best addressed as part of Section 28 requirements for individualized accommodation plans.
Recommendation note: If the word individualized is removed from Section 27, consequential amendments will need to be made to Section 28(3).

Under Section 27 of the Employment Standards employers are required to provide individualized workplace emergency response information under the following conditions:
when the employees disability is such that the information is necessary; and
the employer is aware of the need for accommodation because of the employees disability.
Employers shall provide the information required under this section as soon as practicable after the employer becomes aware of the need for accommodation due to the employees disability.”

It later stated:

“The SDC continued to have a discussion about compliance with the requirement and explained even with high compliance rates concerns remained about whether Section 27 was achieving the intended outcome. SDC members believed more clarity was required in the Employment Standards to achieve this outcome.”

Sections 27 and 28 of the 2011 Employment Accessibility Standard provide:

“Workplace emergency response information
27. (1) Every employer shall 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 employees disability.
(2) If an employee who receives individualized workplace emergency response information requires assistance and with the employees consent, the employer shall provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee.
(3) Employers shall provide the information required under this section as soon as practicable after the employer becomes aware of the need for accommodation due to the employees disability.
(4) Every employer shall review the individualized workplace emergency response information,
(a) when the employee moves to a different location in the organization;
(b) when the employees overall accommodations needs or plans are reviewed; and
(c) when the employer reviews its general emergency response policies.

Documented individual accommodation plans
28. (1) Employers, other than employers that are small organizations, shall develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities.
(2) The process for the development of documented individual accommodation plans shall include the following elements:
1. The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan.
2. The means by which the employee is assessed on an individual basis.
3. The manner in which the employer can request an evaluation by an outside medical or other expert, at the employers expense, to assist the employer in determining if accommodation can be achieved and, if so, how accommodation can be achieved.
4. 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.
5. The steps taken to protect the privacy of the employees personal information.
6. The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done.
7. If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee.
8. The means of providing the individual accommodation plan in a format that takes into account the employees accessibility needs due to disability. (3) Individual accommodation plans shall,
(a) if requested, include any information regarding accessible formats and communications supports provided, as described in section 26;
(b) if required, include individualized workplace emergency response information, as described in section 27; and (c) identify any other accommodation that is to be provided.”

We do not see a need for the amendment sought, and fear that it may unintentionally work against the needs of people with disabilities. An employee with a disability should, if they so request, get safety information that is tailored to their needs. Thus, as s. 27 now properly provides, it should be individualized. The Standards Development Committee’s explanation does not make a convincing case that the proposed amendment would be beneficial.

We therefore recommend that:

#11. The Standards Development Committee’s fifth recommendation, to remove the word “individualized” from s. 27 of the 2011 Employment Accessibility Standard, should be rejected.

h) The Standards Development Committee’s Recommendation 7: Centralized portal for individual accommodation plans (Section 28)

The Employment Standards Development Committee’s seventh draft recommendation is as follows:

“The tools and resources that exist are not easy to find and use outdated language. The SDC recommends the government should be responsible for a centralized portal for updated resources for individualized accommodation plan processes.
Note: The intent of the recommendation is that the tools and resources align with the OHRCs policies on the procedural duty to accommodate. In addition, the OHRC should be consulted to ensure harmonization.”

The Standards Development Committee expressed a concern that resources to help employers know what they need to do under s. 28 of the 2011 Employment Accessibility Standard, to put in place an individual employment accommodation plan for those employees with disabilities who need one are hard to find, scattered in different places, not up-to-date and not written in plain language. In short, this is yet another call for the Ontario Government to do a much better job in providing clear, current, comprehensive and user-friendly guides for employers. This involves no amendment to the accessibility standard. Here too this is powerful evidence of a serious deficiency in a core responsibility of the Accessibility Directorate of Ontario, if the resources on point are as problematic as the Standards Development Committee indicates.

We do not oppose any improvement in those materials. We are deeply concerned that this situation is reported by the Employment Standards Development Committee some seven years after the 2011 Employment Accessibility Standard was enacted.

We therefore recommend that:

#12. Where the Standards Development Committee recommends improved training and information resources for employers, these should be created and made available within four months from now.

i) The Standards Development Committee’s Recommendation 8: Monitoring implementation of return to work processes (Section 29)

The Employment Standards Development Committee’s eighth and final draft recommendation is as follows:

“The Committee believes the desired outcome of Section 29 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. The government should monitor the implementation of Section 29, including any gaps and challenges to inform the next review of the accessible Employment Standards.”

Section 29 of the 2011 Employment Accessibility Standard, to which this draft recommendation refers, provides as follows:

“29. (1) Every employer, other than an employer that is a small organization,
(a) shall 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; and (b) shall document the process.
(2) The return to work process shall,
(a) 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
(b) use documented individual accommodation plans, as described in section 28, as part of the process.
(3) The return to work process referenced in this section does not replace or override any other return to work process created by or under any other statute.”

In substance, the Standards Development Committee is recommending that any review of this provision be deferred to the next five-year review of the Employment Accessibility Standard. This raises a serious concern. As noted above, that review will likely not occur until 2023 or 2024. By then it will be too late to fix it, in order to ensure full accessibility in employment by 2025.

We encourage the Standards Development Committee to instead identify what specific feedback it has received on point. Are employees with disabilities who go off work due to disability, and later try to return to work, reporting that they are having no problem getting their employer to fulfil its duty to accommodate them in their return to work? if no problems are reported, then this provision of the Employment Accessibility Standard need not be revised. If problems continue to persist, then these should be identified now, not in five years, so that revisions to strengthen the provision can be found.

We therefore recommend that:

#13. The Standards Development Committee should consider whether employees with disabilities who attempt to return to work after being off work due to disability are having their needs effectively accommodated in the return-to-work process, and should not defer that issue until the next five-year review of the Employment Accessibility Standard.

7. AODA Alliance Recommendations on Additional Requirements that Need to Be Added to the 2011 Employment Accessibility Standard

a) Generally Expanding the Employment Accessibility Standard to Address Systematic Removal and Prevention of employment Barriers in an obligated organization

The Employment Accessibility Standards core focus is on putting in place formal procedures in each organization for an employee with a disability to request and receive an individualized workplace accommodation. These measures are helpful. Individual workplace accommodations will always be an important part of achieving equality for people with disabilities in the workplace.

However, alone, this wont ensure that Ontario workplaces become fully barrier-free by 2025. The duty to accommodate approach tends to assume that employers will carry on business as usual. leaving existing barriers in place and creating new barriers. When an employee or job applicant with a disability encounters one of these workplace barriers, they have the burden to present this problem to their employer and seek an individual accommodation. When an employer responds to an employees request for an accommodation of a disability-related need, the employer is typically involved in trying after-the-fact to alleviate or work around a barrier that has previously been created, and left in place, possibly for many years.

In addition to responding to individual requests for workplace accommodation, it is necessary for employers to take pro-active and systematic steps to identify and remove existing barriers in the workplace that impede employees and job applicants with disabilities, and to prevent the future creation of new barriers, without awaiting accommodation requests. The workplaces of the future have not yet been built, or even designed. The workplaces of five, ten or fifteen years ago were very different from the workplace of today. Work-related technology, job descriptions and even the physical places where people do their work have changed over time. More flexible work arrangements, such as working from home, have grown and diversified.

As a result, the workplaces that will exist six and a half years from now, in 2025, will predictably also look quite different from those which exist today, just as the workplaces of today look quite different from those that existed five or 10 years ago. The employment accessibility Standard provides an excellent means to help ensure in advance that changes to the workplace that are implemented over the next years leading to 2025 work towards the goal of full accessibility by that year.

Put another way, in any work place, and particularly in any large workplace, there are recurring accessibility needs that can be reasonably expected in advance, and for which an employer can readily plan. To do so reduces the need for and the cost of individual accommodation and improves the workplaces productivity.

Where workplaces systematically plan for and address these recurring accessibility needs in advance, job-seekers and employees with disabilities will thereafter less frequently need to seek individualized workplace accommodations to overcome workplace barriers. To the extent that employers reduce, eliminate or prevent the creation of workplace barriers, the need for individualized accommodation to get around those barriers can commensurately be reduced. Moreover, systematically removing and preventing workplaces barriers in this way saves an organization money, and helps it become more cost-effective an operation.

In contrast, barrier-free workplaces will not be achieved by 2025 where employers continue to design and operate their workplaces on an implicit assumption that their employees have no disabilities, thereby leaving it to an employee with a disability to come forward to identify themselves, and to present individualized workplace accommodation requests, to counteract the consequences of that approach. A barrier-free workplace will open that workplace up to a greater pool of potential employees. It will enable the organization to more easily and effectively retain its existing workforce over the years, as tits current employees acquire disabilities due to illness, accident or aging.

Nothing in the 2011 Employment Accessibility Standard now requires Employers, and especially large employers, to examine their workplaces to identify existing barriers to workplace accessibility, including barriers to the delivery of effective recurring accommodation needs, so that they can plan for addressing these over time. As a general matter, as an employer comes up with major new plans for the workplace, it should take steps to make sure these new initiatives dont create new barriers against job-seekers and employees with disabilities, and that where feasible, they reduce or eliminate existing workplace barriers. It would be very helpful, at least for larger private sector employers as well as all public-sector employers, to review their workplace and employment systems to ascertain what barriers now exist.

There are several examples of barriers that easily illustrate how easily and effectively an employer can make progress in this area. For example:

When an employer plans to move its operations to a new location, or to expand its operations to new premises, or designs or re-organizes office workspace, it can plan to do so in a way that ensures that the office workspace is maximally accessible to people with disabilities. This can include, for example, designing aisles, seating areas, and workstations based on universal design principles or with the flexibility that enables ready accommodation. If these steps are taken when an office is being reorganized, or a new office is being set up, accessibility can be built into the design, usually at very little cost. If an office has an existing workplace it is not slated for a major renovation, it is possible for an employer to identify readily achievable measures that will improve accessibility in the short run.

Such measures should be addressed in the Employment Accessibility Standard. They, should not be deferred to the promised Built Environment Accessibility Standard. No comprehensive Built Environment Accessibility Standard has been enacted under the AODA. None is now planned. 2013 amendments on accessibility to the Ontario Building Code were substantially insufficient.

A new or renovated building that fully complies with the Ontario Building Code and AODA “public spaces” Accessibility Standard can, and often does include real and significant accessibility barriers. See e.g. the AODA Alliance’s online videos showing serious accessibility problems at the new Ryerson University Student Learning Centre, and the new Centennial College Culinary Arts Centre. The Government has announced no plans to rectify these pervasive problems.

A second example of a readily-preventable workplace barrier not addressed in the proposed Employment Accessibility Standard can arise when an employer holds an off-site event for some or all employees. (e.g. a staff meeting or retreat at another location, rented for that event). Especially when the employer is located in a major urban setting like Toronto, Ottawa or London, it usually has many options that are available for rent for venues to hold such events. To hold one in a venue that is disability-accessible doesnt require the employer to retrofit any of its existing properties. It only requires the employer to choose a property from among the many available to rent, which is accessible. This provides two benefits. For the employees, it ensures accessibility to all. For the longer term, it will provide a financial incentive to hotels and other venues, rented for such events, to make sure their facilities are fully accessible, in order to broaden the market for their properties.

A third example of workplace barriers concerns the office furniture and equipment that is purchased for use by employees. It is not necessary for every last piece of inaccessible furniture and office equipment now in use in employers workplaces to be scrapped, and for them to be all replaced with furniture and equipment that is fully accessible. There are many readily-achievable steps that can be taken, that fall far short of this, and that will make substantial progress. This can include:

a) Wherever new office furniture or equipment is acquired in future, where possible, obtaining accessible items.

b) Identifying existing barriers in existing office furniture and equipment, and identifying priorities for redressing these over time e.g. via attrition;

c) Arranging an employers existing office furniture and equipment in a way that makes it easiest to provide accessible workstations for an employee with a disability, pending replacement of existing furniture and equipment.

It is not sufficient to leave this matter to be dressed in the Information and Communication Accessibility Standard. With seven years of experience with that standard, it is clear that it has not resolved these problems in the workplace.

A fourth category of recurring workplace barriers concerns terms of employment, such as hours of work, and location of work. For persons with some kinds of disabilities, flexibility in working conditions are required, e.g. to enable them to attend regular medical treatments, or to address limits on their ability to work for extended consecutive hours. The option of flexible work arrangements can often assist, while maintaining and increasing productivity.

In all these examples, corrective actions are beneficial not only for employees and job applicants with disabilities, but also for existing employees who now have no disability, but who may get a disability later. As well, these measures will often assist in the accommodation of customers with disabilities. That too can increase a businesss profitability. A law firm whose office aisles are too narrow for a wheelchair to navigate impedes not only lawyers and office staff with disabilities, but also prospective clients with disabilities.

With proper action in the Employment Accessibility Standard aimed at identifying, removal and preventing disability barriers in the workplace, the workplaces of 2025 can be barrier-free. Without this, employers will continue to leave employment barriers in place, and will continue to create new ones.

It would be very helpful for this Standard to state explicitly that there is a duty to identify and remove existing workplace barriers, and not to create new workplace barriers. It would also be helpful to make it clear that this duty applies to everyone working for an employer. Removing and preventing barriers is everyone’s business. The Standard should also make it clear that no one may do anything which prevents or impedes the identification, removal or prevention of workplace barriers against people with disabilities, or that impedes the provision of needed workplace accommodation to employees or job applicants with disabilities.

We therefore recommend that:

#14. the Standard should be expanded to set out:

a) an explicit duty to identify, remove and prevent workplace barriers;

b) a duty not to take any action that impedes the identification, removal or prevention of workplace barriers against people with disabilities, or that impedes the delivery of needed workplace accommodations to employees or job applicants with disabilities.

#15. The standard should be amended to include specific requirements for identification, removal and prevention of recurring workplace barriers over time, apart from fulfilling individual employee accommodation requests, e.g. barriers in office workspace, office equipment and technology and terms and conditions of work.

b) Building Barrier Removal and Prevention into The Collective Bargaining Process at a Unionized Workplace

Normally it is the employer who has the duty to accommodate, since the employer manages the workplace. However, under human rights law, if the terms of a collective agreement impede the effective accommodation of an employee with a disability, there are circumstances in a unionized workplace when the union must work together with the employer to ensure that the employee is effectively accommodated.

Human Rights cases make it clear that an employer cannot contract out of its duty to accommodate people with disabilities. They also make it clear that there are circumstances where a collective agreement between a union and employer can unintentionally operate to impede the effective accommodation of an employee in the workplace. This can result in a duty on the part of the union, and not just the employer, to help make sure that the employee is effectively accommodated.

The 2011 Employment Accessibility Standard does not specifically address the situation. It should be expanded to do so. It is not necessary or desirable for the Employment Accessibility Standard to set out in detail the duties of trade unions and employers when these situations arise. However, it would be helpful to expand the Employment Accessibility Standard to put in place a process, consistent with the traditional collective bargaining relationship of employers and unions, to help make sure that when collective agreements are bargain in the future, they are designed not to impede the achievement of barrier free workplaces.

A useful way that this could be achieved would occur when a union and employer sit down to bargain a new collective agreement, either because the old one has expired, or because this is the first contract to be negotiated. It would be helpful if during that collective bargaining process, the employer and union were to review any existing collective agreement, to identify if any barriers exist that would impede effective accommodation of employees or job applicants with disabilities, and if found, to negotiate provisions that address these barriers. It would also be helpful if during the collective bargaining process, the employer and union directed their attention to ensuring that no new barriers are created in the collective agreement that they eventually negotiate.

Similarly, in those very limited situations where a collective bargaining agreement is imposed through an arbitration process, rather than through negotiations, the arbitrator should be under a duty, in devising the collective agreement, to ensure that the contract doesn’t perpetuate any old barriers, or create any new barriers against employees or job applicants with disabilities. As part of that process, the arbitrator could invite the union and employer to make submissions on the identification of existing barriers in the expired collective agreement, or the existence of possible new barriers in proposed terms which one or other party has put on the table, and on strategies for removing and preventing such barriers.

It is not unusual for unions and employers, involved in the collective bargaining process, to come up with contractual terms to address such issues. For example, several collective agreements now commendably include “human rights” clauses. These repeat the guarantees of employment equality set out in the Human Rights Code. Under these clauses, unions can bring grievances against the employer under the collective agreement if the employer refuses to effectively accommodate an employee with a disability. Moreover, some collective agreements include terms that regulate which employees can work on which jobs at which times. Of these, some include exceptions to enable employees with disabilities to be able to move to job positions that they can do, even if they weren’t otherwise entitled to make that job move under the collective agreement. Unions have experience with this need, especially in workplaces with significant numbers of workplace injuries.

Such additions to the Employment Accessibility Standard would constructively build on the existing relationship between the union and employer, and the traditional collective bargaining process. it would implement the duties that the employer and union already have under human rights law. These can be fortified if the employer and union had added obligation to consult with employees with disabilities to help identify possible barriers in the workplace that need to be addressed.

In proposing this, we do not propose reducing in any way the employer’s primary obligation for achieving a fully accessible workplace and delivering needed workplace accommodations. We also do not propose that the process of providing workplace accommodation should be subject to collective bargaining, or that it become a bargaining chip during disputes between management and a union over other issues. An employer cannot negotiate away its duty to accommodate, nor contractually tie its hands in a way that impedes the delivery of effective workplace accommodation. We also dont propose any alteration in the balance between unions and employers in the workplace. We simply propose that the union and employer direct their minds, while undertaking collective bargaining, towards ensuring that the result of the collective bargaining process promotes a barrier free workplace and doesnt impede effective workplace accommodation of employees and job applicants with disabilities. In recommending this, we do not in any way propose to reduce the important duties of management and unions regarding workplace accommodation of employees with disabilities during the life of an existing collective agreement.

We therefore recommend that:

#17. The standard should be expanded to address the process of removing and preventing barriers to effective workplace accommodation and accessibility in the collective bargaining process and in collective agreements, which could:

a) focus an employer and union, involved in the process of bargaining a collective agreement, on identifying and removing existing barriers in the collective agreement, and preventing the creation of new employment barriers;

b) require a mediator or an arbitrator, undertaking binding arbitration of the collective agreement, to address identification removal of existing barriers, and prevention of new barriers in the collective agreement, including inviting submissions from the union and employer on this topic during the mediation/arbitration process;

c) engage the employer and union in getting input from employees with disabilities on workplace barriers that may arise from the collective agreement;

c) Planning For The Cost Of Workplace Accommodations

Some in the community in the past have approached these issues on the incorrect assumption that providing accessibility is some new obligation that the AODA created. Some have demanded that the Government pay for the cost of providing that accessibility before anyone outside the government should be required to do anything to remove or prevent barriers impeding persons with disabilities.

Yet these are not new cost burdens that the AODA has created in 2005. As noted earlier, since 1982, the Human Rights Code has required that barriers against persons with disabilities in accessing employment, goods, services and facilities be identified, removed and prevented.

Some workplace accommodations and some workplace actions to remove and prevent barriers can involve some up-front costs. Because they enable employees with disabilities to become more productive, these expenditures usually pay themselves off, typically with added benefits for the employer.

An organizations ability to deliver timely, effective accommodation can be increased if it has in place a system to smooth the process of paying for these accommodations. Larger organizations, such as government departments, develop and operate under detailed annual budgets. If these dont include specific allocations for workplace disability accommodations, there is the risk that the cost of accommodation will be treated as something we dont have budget for.

The duty to accommodate is imposed on an employer as a corporate entity. It is no defence under human rights legislation to simply say that an organization has not budgeted for accommodation. Moreover, an organizations duty to accommodate is not limited to undue hardship to a specific departments budget. It is limited by undue hardship to the organization as a whole.

In the 1980s, the Ontario Government commendably put in place a very helpful system to help each Government department and agency cover the cost of individual workplace accommodations. It established a central fund, called the Employment Accommodation Fund, for this purpose. An individual government office could apply to that fund to reimburse it for costs of specific disability workplace accommodations. Each individual government office still had the ultimate responsibility to provide needed workplace accommodations for employees with disabilities who needed them. An individual government office cannot refuse to provide a needed workplace accommodation, on the grounds that the employment accommodation fund would not reimburse the cost. Thus, the employment accommodation fund did not have the a veto over whether the worker would be accommodated. However, individual managers knew that they could have recourse to the employment accommodation fund.

In 2001, the Ontarians With Disabilities Act 2001 was enacted, the precursor to the AODA. It embedded this fund in legislation. [See our recommendations regarding this fund, below]. No legislation had been needed to establish or operate the fund for over a decade before then. Even though the Government repealed the Ontarians with Disabilities Act, it retained this and related provisions.

There need be no one-size-fits-all solution to addressing this issue. However, it would be helpful if the Employment Accessibility Standard established some basic requirements to achieve the objective of ensuring that an organization has in place an effective means for flowing funds to cover workplace accommodations that the Ontario Human Rights Code requires. By this, the Standard would not set the amount of money an organization should spend on workplace accommodation. That is a matter already governed by the Human Rights Code.

We would recommend that very large organizations such as large municipalities, hospitals, universities and school boards, and large private corporations be required to establish something comparable to the Ontario Government’s employment accommodation fund. For other larger organizations, it may be sufficient for the employment accessibility Standard at this point to simply require that they put something in place to address this need, leaving them flexibility on how it will operate. We dont here propose that any measures be directed in this regard at small businesses.

In proposing this, we emphasize that we are not suggesting that major bureaucratic burdens be imposed on organizations, requiring a lot of paperwork or the hiring of additional staff. We do not want funds diverted from the needed objective of providing actual workplace accommodations to employees with disabilities who need them, towards instead funding some new, excessive bureaucratic burden. Also, to help make this easily and effectively enforceable, it should be easy to establish whether an organization is done what the Employment Accessibility Standard would require in this regard.

In proposing this, we proceed on the basis that the human rights code already requires employers to spend a certain amount of money on workplace accommodations i.e. where needed, up to the point of undue hardship to the organization. We are not here proposing to raise the bar. We’re simply proposing the establishment of a means within the organization to help best ensure that that money is available and accessed on a timely basis. We do not propose an organization set a ceiling in advance of how much it will spend on workplace accommodation. Those expenditures will have to be decided on a case-by-case basis.

We therefore recommend that:

#18. the Standard should be amended to require larger private sector organizations, and all public sector organizations, to establish, make public, and inform employees and job applicants about a process for making funds available within the organization, when needed for workplace accommodations, including:

a) In the case of public sector organizations, establishing a central fund to cover the cost of accommodations, so long as that Fund is not treated a ceiling of what the organization may expend on needed workplace accommodation;

b) Large private sector organizations would either establish such a Fund or a comparable process.

c) If an employee-requested workplace accommodation isnt provided by the organization, on account of concerns over the cost or for any other reason, the organizations chief executive officer will be informed of this decision and the reason for it.

We further address this in connection with the Ontario Public Service in the next section of this brief.

d) Additional Provisions Addressing The Ontario Government And Ontario Public Service As Employer

The Employment Accessibility Standard needs to be expanded to include additional provisions that specifically address the Ontario Government as an employer. These should aim at having the Ontario Public Service become a barrier-free workplace for employees with disabilities.

The Ontario Government is recognized as Ontarios largest employer. It has claimed to want to lead by example as a model employer in this area. Yet its internal practices don’t live up to this commitment.

Because of the many workplace barriers in the private sector, many persons with disabilities have historically turned to the Ontario Government as a place to find a first job, and to develop a positive work record that they can later present to prospective private sector employers. Its distinctive role as an employer should be addressed in the Standard. The predecessor law to the AODA, the Ontarians with Disabilities Act 2001, included specific provisions bearing directly or indirectly on removing and preventing employment barriers in the Ontario Public Service. Even though the Ontarians with Disabilities Act has been repealed, those specific provisions have been preserved in Ontario legislation.

We therefore recommend that:

#19. The standard should be expanded to

a) Ensure that access to the current Ontario Employment Accommodation Fund will made available to any employee of the Ontario Government and any public official paid by the Ontario Government whether or not they are employed by a specific Ministry.

Under existing AODA requirements, the Ontario Government has undertaken training of its employees. The vast bulk if not virtual totality of this has been done by online point-and-click training modules. Managers need the vastly-superior benefit of face-to-face training in the areas of barrier-removal and prevention, and the duty to accommodate employees and job-seekers with disabilities.

We therefore recommend that:

#20. The standard should be expanded to

a) require that training of management officials in the Ontario Public Service on employment accessibility standards issues be face-to-face, not on-line training, and

b) require periodic training of co-workers in the Ontario Public Service on the duty to accommodate employees with disabilities, whether or not they have management responsibilities.

e) Government Procurement of Goods and Services

The Ontario Government is a huge purchaser of goods and services that are used in the workplace. To achieve a fully barrier-free workplace, it should only purchase goods and services that are barrier-free for employees with disabilities, absent some very compelling reason for not doing so. The Employment Accessibility Standard doesnt now require the Ontario Government or any other employer to do this.

The Integrated Accessibility Standards Regulation 2011, of which the Employment Accessibility Standard is a part, includes a general provision regarding procurement. It is weak and has been ineffective at rectifying this issue. It provides:

“5. (1) The Government of Ontario, Legislative Assembly and designated public sector organizations shall incorporate accessibility design, criteria and features when procuring or acquiring goods, services or facilities, except where it is not practicable to do so.
(2) If the Government of Ontario, Legislative Assembly or a designated public sector organization determines that it is not practicable to incorporate accessibility design, criteria and features when procuring or acquiring goods, services or facilities, it shall provide, upon request, an explanation. (3) REVOKED:
Self-service kiosks
6. (1) Without limiting the generality of section 5, the Government of Ontario, Legislative Assembly and designated public sector organizations shall incorporate accessibility features when designing, procuring or acquiring self-service kiosks.
(2) Large organizations and small organizations shall have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks.

3(3), (4) REVOKED:
(5) In this section,
kiosk means an interactive electronic terminal, including a point-of-sale device, intended for public use that allows users to access one or more services or products or both.”

It is insufficient to simply require the Government to consider accessibility when purchasing goods and services. The Government could comply with this provision, by simply thinking about accessibility, but not doing any thing about it. This provision has been insufficient to ensure that goods and services purchased for use in or by the Ontario Public Service are fully accessible to and usable by employees with disabilities. As far as we have been able to tell, no Standards Development Committee is doing a comprehensive review of these provisions. We need the Employment Standards Development Committee to do so, in so far as employment is concerned.

It is important that there be an effective process to monitor the Ontario Governments compliance with these requirements, and to enforce non-compliance. Now, the Government has been lax in its overall enforcement of the AODA. We have no indication that the Government has focused on this part of the AODA in its enforcement. Even if there were, it would be a case of the Government enforcing the AODA against itselfhardly a situation in which the public can have any confidence.

We therefore recommend that:

#21. The standard should be expanded to substantially strengthen requirements for procurement of accessible goods, services and facilities for use in the Ontario Government and the Ontario Public Service, including a process for effective monitoring and reporting to the public on the Government’s performance in this context.

More Information About the AODA Alliance

To sign up for or unsubscribe from Accessibility for Ontarians with Disabilities Act Alliance Updates, send your request to us at aodafeedback@gmail.com In late December 2017, our email list for these Updates unfortunately crashed. We have rebuilt it. In case you fell off the list but want to return, just email to ask us to sign you up. In case you had wanted to be removed from the list, but were accidentally restored to it, just email us to ask to be removed! Sorry for any inconvenience.

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We encourage you to use the Governments toll-free number for reporting AODA violations. We fought long and hard to get the Government to promise this, and later to deliver on that promise. If you encounter any accessibility problems at any large retail establishments, it will be especially important to report them to the Government via that toll-free number. Call 1-866-515-2025.

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Check out our new and expanded collection of online videos about the history, strategies and accomplishments of Ontario’s non-partisan grassroots accessibility campaign, available at:
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