Accessibility Update 2017

Transcription

1 Accessibility Update 2017 Karen Sargeant Jackie VanDerMeulen November 28, 2017 Agenda 1. Key Challenges for HR Professionals 2. The Duty to Accommodate in Employment 3. Employer Obligations under the AODA 4. Manitoba and the Federal Sector 5. Key Strategies for Reconciling Employer Obligations 2 Key Challenges for HR Professionals Promoting and Managing Accessible Workplaces 3

2 Statistics One in seven people in Ontario have a disability (1.85 M). Over the next 20 years, that number will rise to one in five people as the population ages. 4 Prevalence of Workplace Disability and Accommodation Requests Disability continues to be the most cited ground of discrimination in applications to the HRTO In Ontario, the prevalence of disability is slightly higher than the national average at 15.4% of the population The average age of disability onset is in the early 40s, and the prevalence of disability increases steadily with advancing age Source: OHRC Policy on Ableism and Discrimination based on Disability (June 27, 2016) 5 Prevalence of Workplace Disability and Accommodation Requests Among potential workers with disabilities, 58.6% would require a workplace accommodation The most needed accommodation was modified or reduced work hours: 41.5% of potential workers needed this type of arrangement, compared with 22.6% of employed people with disabilities Among those with severe or very severe disabilities, the need for modified or reduced work hours was higher: 56.0% of potential workers and 39.6% of employed persons Source: Canadian Survey on Disability, 2012 A Profile of the Labour Market Experiences of Adults with Disabilities among Canadians aged 15 years and older,

3 Prevalence of Workplace Disability and Accommodation Requests 7 The Duty to Accommodate in Employment Review of Key Principles 8 Duty to Accommodate Disability in Employment: Ontario Under human rights legislation, employers and service providers have a legal duty to accommodate the disability-related needs of employees and service users Limit = undue hardship The people seeking accommodation and the organizations providing accommodation both have responsibilities to participate in the process The principles of dignity, individual accommodation, integration and full participation should guide the process 9

4 Duty to Accommodate Disabilities in Employment: Ontario Procedural vs. substantive Procedural: Obtain all relevant information about the employee s disability The employee s current medical condition Prognosis for recovery Ability to perform job duties Capacity for alternative work Analyze whether the disability can be accommodated Substantive: Employer must accommodate an employee s disability; OR Employer must show that it cannot accommodate an employee s disability without experiencing undue hardship 10 Duty to Accommodate Disabilities in Employment: Ontario Take-home Points: 1. The procedural duties and the substantive duties are equally important 2. Undue hardship is a high standard to meet and one that employers often fall short of in their efforts to accommodate 11 The Procedural Duty to Accommodate in Ontario: Gaisiner* Applicant alleged employer discriminated against him when it failed to accommodate his ADHD and terminated his employment, contrary to the Code Employer submitted that it terminated the applicant solely because he did not have the technical ability to perform the duties of his job or, alternatively, that it provided reasonable accommodation to the point of undue hardship No factual dispute that the applicant had issues with his performance and that he was terminated due to these performance issues Question was whether the applicant s disability was a factor in his performance issues and, if so, whether he was capable of performing the essential duties of his position with accommodations that would not cause the employer undue hardship *Gaisiner v Method Integration Inc, 2014 HRTO

5 The Procedural Duty to Accommodate in Ontario: Gaisiner (cont d) Tribunal found that the applicant met his onus of demonstrating a link between his disability and the adverse impact he experienced as a result of termination of his employment Further found that the applicant disclosed his ADHD to the employer and this was sufficient information to trigger a duty on the [employer] to take further steps to look into the matter prior to terminating the applicant 13 The Procedural Duty to Accommodate in Ontario: Gaisiner (cont d) It is well accepted in the case law that the duty to accommodate includes both a procedural and substantive component In my view, this case demonstrates the very significant risks faced by respondents when they fail to properly fulfill the procedural component of the duty to accommodate The procedural component of the duty to accommodate can be just as important as the substantive component of the duty to accommodate 14 Conclusions regarding the Procedural Duty to Accommodate in Ontario The two components of the duty to accommodate work together and are intimately related An employer is not permitted to rely on after-acquired evidence to support its view that an employee could not have been accommodated Without initiating the proper inquiries (procedural), the employer cannot consider options for accommodation (substantive) and it cannot advance evidence to satisfy the Tribunal that it provided accommodation short of undue hardship 15

6 The Procedural Duty to Accommodate: Federal Sector Cruden v. Canadian International Development Agency* Human rights complaint brought by an employee of the Canadian International Development Agency (CIDA) The central issue on appeal was whether employees had a separate procedural right to accommodation that could be independently breached and could therefore attract remedies under the Canadian Human Rights Act, even if the employer could not accommodate the employee without undue hardship *Cruden and Canadian International Development Agency, Re, 2014 FCA The Procedural Duty to Accommodate: Federal Sector Take-home Points: Insufficient attention to procedure alone will not be sufficient to trigger breach and attract remedies Moving forward, unclear whether this standard will be adopted by other jurisdictions that currently recognize both a procedural and substantive duty 17 The Standard for Undue Hardship: Hamilton-Wentworth* Series of appeals by employer School Board against finding by Tribunal that it had discriminated against its employee in failing to provide accommodation for her disability (anxiety, depression, PTSD) Employee could not continue work in supervisory positions where she risked personal liability for her actions (identified as trigger for her symptoms) *Hamilton-Wentworth District School Board v Fair, 2016 ONCA

7 The Standard for Undue Hardship: Hamilton-Wentworth Tribunal concluded: Employer discriminated against employee on the basis of disability by failing in its duty to accommodate her Employee co-operated fully in the accommodation process, including maintaining consistent communication and providing consent to release of her medical information Employer failed to actively, properly, and diligently canvas possible solutions to [her] need for accommodation based on numerous findings 19 The Standard for Undue Hardship: Hamilton-Wentworth Specific failings identified by the Tribunal include: failed to adopt an active role in canvassing all possible accommodation solutions from the outset failed to meet with the vocational rehabilitation consultant from employee's long-term disability insurer to explore volunteer or work-hardening activity attempted to influence the School Board's medical expert to conclude that employee was not worthy of accommodation refused to accommodate employee's placement in available positions either temporarily or permanently neglected to give any consideration to employee s ability to perform in alternate employment opportunities following the receipt of its expert's report in May 2004, and instead terminated employee 20 The Standard for Undue Hardship: Hamilton-Wentworth Court of Appeal School Board's own policy on the "Accommodation of Personnel" recognized the principle that reasonable accommodation of a disabled employee may in some circumstances require the transfer of the employee to another position No evidence that the School Board did not have the financial resources, even during a period of fiscal restraint, to fill the position of Area Supervisor, or that it would have caused undue hardship to do so 21

8 The Standard for Undue Hardship: Hamilton-Wentworth To fulfil its duty to accommodate an employee's disability, an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified but not necessarily the most qualified School Board was required to take reasonable steps to accommodate the employee reasonable steps included altering her previous position or looking for alternate positions if the previous one could not be altered in order to accommodate her without undue hardship 22 Employer Obligations under the AODA Ensuring Compliance for Reporting Obligations Organizations with 20+ ees* December 31, 2012 December 31, 2014 December 31, 2017 December 31, 2020 Designated Public Sector Organizations December 31, 2010 December 31, 2013 December 31, 2015 December 31, 2016 December 31, 2017 December 31, 2019 December 31, 2021 * Orgs with ees only required to report compliance with the Customer Service standards 24

9 AODA Policy Obligations Customer Service Accessibility Policy Commitments re: service animals, support persons, communications, notice of temporary disruptions and feedback re: accessibility If < 20 employees, no obligation to have written policy Multi-Year Accessibility Plan Accessibility Policy(ies) Timeline for organizational compliance with the AODA Only applies to organizations with 50+ employees Statement of commitment to accessibility and how org will achieve accessibility goals, including those under the AODA If < 50 employees, no obligation to have written policy or statement of commitment Accessibility Employment Policy Written process for developing individualized accommodation plan process (only applies if 50+ employees) Include other commitments re: employment standards under AODA 25 AODA Policy Resources Customer service policy template: olicy-template Accessibility policy template (1-49 ees): Accessibility plan / policy template (50+ ees): Accessible employment policy (50+ ees): 26 AODA Posting / Notice Obligations Notify public* and employees of customer service accessibility policy Post multi-year accessibility plan on website* Notify employees of accessibility policies * Applies to organizations with 50+ employees only 27

10 AODA Training Obligations Customer Service Standard Training Who: Workers who interact with customers on behalf of the organization and who develop policies re: provision of goods and services to the public What: Training re: statutory requirements, company policies, providing goods / services to customers with disabilities Organizations with 50+ employees are required to keep records of training General Accessibility Training Who: All employees and volunteers, individuals who develop policies for organization and others providing services on behalf of your organization What: Training re: the AODA as it applies to the employee s work and overview of the Human Rights Code Organizations with 50+ employees are required to keep records of training 28 Training Resources Customer Service and General Training Access forward (developed in partnership with the government of Ontario): Human Rights Code Training Ontario Human Rights Commission s training: e-and-aoda Note: No specific format required. 29 Accessible Formats and Communication Supports Provide accessible formats and communication supports to persons with disabilities Consult with individual to determine needs / suitability of proposed format / communication Timely manner At same cost as that charged to other persons Obligation only arises upon request Required to notify the public about availability 30

11 Accessible Information and Communications Accessible feedback mechanisms (if feedback mechanisms already made available) Emergency information Accessible formats, upon request, for the public and Personalized emergency response information for employees New websites (or significant refreshes) to be compliant with WCAG Level 2.0 A (not applicable to orgs with <50 ees); Level 2.0 AA by Self-Service Kiosks Consider accessibility when designing, purchasing or acquiring self-service kiosks i.e. an interactive electronic terminal, such as parking kiosks, check-out kiosks, etc. Standards do not specify specific features, but best practices are emerging: Audio instructions Specialized keypads Other structural features, such as accessibility by individuals in wheelchairs / with walkers 32 Transportation Applies to: Conventional transportation services Municipalities with specific requirements for those that license taxicabs or provide conventional transportation services Specialized transportation services Wheel-Trans and DARTS Certain ferries Public school boards that provide transportation services Hospitals, colleges and universities who provide transportation services (for example, shuttle buses) Various technical specifications and training requirements 33

12 Design of Public Spaces Focuses on removing barriers in: Buildings Through Ontario s Building Code Public Spaces Trails Outdoor public eating areas Outdoor play spaces Outdoor paths of travel Parking Service counters Includes various specifications, consultation requirements and maintenance obligations. More available here: w-make-public-spaces-accessi ble 34 Changes to the Ontario Building Code Came into effect January 1, 2015 Includes various new requirements, including: Requirements for an elevator or other barrier-free access to be provided between storeys in most buildings, with some exemptions for small residential and business occupancy buildings; Requirements for power door operators to be provided at entrances to a wider range of buildings, and at entrances to barrier-free washrooms and common rooms in multi-unit residential buildings; Updated requirements for barrier-free washrooms and universal washrooms; Requirements for barrier-free access to public pools and spas; and Updated requirements for accessible and adaptable seating spaces in public assembly buildings such as theatres, lecture halls and places of worship. More details available here: 35 Employment Standards Obligations Note that these obligations apply only to employees of the organization, not to volunteers or independent contractors These requirements apply to small, non-designated organizations, with the exception of: Individualized accommodation plans Return to work processes 36

13 Recruitment, Assessment and Selection Notify employees and public about availability of accommodation in recruitment process We welcome and encourage applications from people with disabilities. Reasonable accommodations are available on request for candidates taking part in all aspects of the selection process. Notify job applicants when selected to participate in an assessment or selection process that accommodation is available upon request If accommodation is requested, consult with applicant on suitable accommodation Notify successful applicants of accommodation policies when making offer 37 Informing Employees of Supports Inform employees of policies to support employees with disabilities, including accommodation policies Provide updates on changes to policies Where an employee with a disability requests, consult with the employee to provide/arrange accessible formats and communication supports for: information that is needed in order to perform the employee s job; and information that is generally available to employees in the workplace 38 Individual Accommodation Plans Have a written process for the development of individual accommodation plans ( IAPs ), including: Employee participation in development of plan Means of individual employee assessment Manner to request evaluation by outside expert Inclusion of bargaining unit representative on request Privacy considerations Frequency of plan review If plan is denied, how that denial will be communicated Provision of plan in accessible format 39

14 Individual Accommodation Plans (cont d) Decisions regarding reasonable accommodation rest with the employer Sample process and plan available here: bforms.nsf/formdetail?openform&act=rdr&t AB=PROFILE&SRCH=&ENV=WWE&TIT=0048& NO= E 40 Return to Work Process Have a written process for employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work, which requires: outlining the steps the employer will take to facilitate the return to work of employees; and the use of documented IAPs Does not replace or override other RTW processes under other statutes Sample process: f/formdetail?openform&act=rdr&tab=profile&sr CH=&ENV=WWE&TIT=accessibility&NO= E 41 Performance Management, Career Development and Advancement and Re-Deployment Employers must consider accessibility needs of employees and IAPs: If there is an existing performance management process, during that process During career development or advancement opportunities Upon re-deployment of the employee 42

15 How to Report Compliance Create a ServiceOntario account (you will need your 9 digit business number) Select a point-person for your organization future correspondence from the Accessibility Directorate will be directed at him / her Full details and guidelines on filing your organization s accessibility report are available on the Province s website: ccessibility-compliance-report 43 Enforcement of the AODA While organizations can be selected for audit whether they submit a report or not, a large component of compliance activities center around organizations that have failed to file their most recent report In 2016, 1,205 Phase 1 audits were completed among organizations that had: never filed an accessibility compliance report reported they had not met their requirements under the law filed a report in 2012 but not in 2014 Of the audits initiated in 2016, 95% were completed without requiring escalation or enforcement, aligning with government s overall compliance assurance approach Source: Government of Ontario, Accessibility Compliance and Enforcement Report Compliance Data: 2016 Results 43% of business/non-profit sector organizations had submitted their most recent version of the accessibility compliance report, up from 38% in 2014 Organizations audited at Phase 2 were audited on a variety of requirements across the standards and not all organizations were audited on the same set of requirements In 2015, a selection of large organizations from the business/non-profit sector were audited on one or more of the four foundational requirements. Their rates of compliance were: Develop accessibility policies: 93% Provide accessibility training: 80% Establish a method to receive and respond to public feedback on accessibility: 90% Develop a multi-year accessibility plan: 65% Source: Government of Ontario, Accessibility Compliance and Enforcement Report

16 Enforcement Blitz Each year government conducts a targeted audit blitz intended to focus on a specific sector, verifying compliance with specific requirements The 1,604 compliance activities included a targeted Phase 2 audit blitz of 125 large organizations from Ontario s hospitality sector The blitz focussed on the Integrated Accessibility Standards Regulation employment standards requirements to: notify employees and the public about the availability of accommodation for applicants with disabilities in the recruitment process notify successful applicants of policies for accommodating employees with disabilities when making offers of employment Out of 125 organizations audited as part of the blitz: 109 or 87% notified their employees of available accommodations for applicants with disabilities during the recruitment process 101 or 81% notified the successful applicants of their policies for accommodating employees with disabilities 22 compliance plans were issued. All compliance plan deadlines were met and no organizations required enforcement measures Source: Government of Ontario, Accessibility Compliance and Enforcement Report Enforcement of the AODA: Typical Roadmap Compliance Plan Of the 1,604 compliance activities that took place in 2016, 38 were sent to an inspector with only two requiring monetary penalties Enforcement Inspector 84% organizations that received a plan (164) were brought into compliance without the involvement of an inspector 47 Manitoba and the Federal Sector Emerging Accessibility Legislation 48

17 Manitoba s Accessibility for Manitobans Act Five accessibility standards in AMA that parallel the AODA Accessibility Standard in Customer Service is the only accessibility standard that has been enacted Compliance deadlines: November 1, 2017 for public sector organizations November 1, 2018 for non-profit and private sector organizations with at least one employee 49 Federal Sector Consultations From July 2016 to February 2017, the Government of Canada consulted Canadians to gather information that will help create new accessibility legislation Culminated in the production of Report: Creating new federal accessibility legislation: What we learned 50 Federal Sector Consultations Employment was the top priority identified through consultations Participants talked about the importance of workplaces that address barriers and allow persons with disabilities to obtain a first job, succeed in their work and get promoted as leaders More could be done to make sure that workplace policies do not result in more barriers to accessibility E.g. making sure employers understand the value that employees with disabilities can bring to the workplace Source: Government of Canada, Accessible Canada: Creating new federal accessibility legislation (May 29, 2017) 51

18 Reconciling Employer Obligations Key Strategies 52 The Code and the AODA Operate Distinctly Section 3 of the AODA: Nothing in this Act or in the regulations diminishes in any way the legal obligations of the Government of Ontario or of any other person or organization with respect to persons with disabilities that are imposed under any other Act or otherwise imposed at law The AODA does not relieve or take the place or change any accommodation obligations under the Human Rights Code 53 AODA and the Code Compliance with AODA standards is not a defence to the human rights obligation to accommodate disability to the point of undue hardship: Wozenilek v 7-Eleven Canada, 2010 HRTO 407 Austin v Clayton Lakeside-Beaton, 2011 HRTO 31 The HRTO does not enforce the AODA: Bishop v Hamilton Entertainment and Convention Facilities Inc, 2012 HRTO

19 AODA and the Code The Tribunal s jurisdiction is to apply the Code While it does not have the jurisdiction to apply and enforce the AODA, the Tribunal has noted in a number of its decisions that the Code s provisions need to be considered together with the AODA and its Standards JF v Waterloo Catholic District School Board, 2017 HRTO Strategies for Employers 1. Develop (and implement) the right policies Attendance management programs Ensure non-discrimination policy and accessible employment policy work together 2. Ensure managers understand their obligations 3. Compliance with process is just as important as outcome Train HR staff in procedural duties Develop a roadmap, including checklists and template letters 4. Don t make your business a target: report full compliance 56 Karen Sargeant Partner, Toronto ksargeant@fasken.com Jackie VanDerMeulen Associate, Toronto jvandermeulen@fasken.com 57

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