Le rapport d’observation de la Loi de 2005 sur l’accessibilité pour les personnes handicapées de l’Ontario doit être présenté le 31 décembre 2017

Introduction

Tous les trois ans, les sociétés sans but lucratif et les entreprises comptant au moins 20 employés doivent remplir et remettre au gouvernement ontarien un rapport confirmant qu’elles observent la Loi de 2005 sur l’accessibilité pour les personnes handicapées de l’Ontario (la « LAPHO »).

Depuis le 31 décembre 2014, dernière date à laquelle il fallait produire un rapport, plusieurs nouvelles exigences applicables aux grandes organisations (au moins 50 employés en Ontario) et aux petites organisations (moins de 50 employés) sont entrées en vigueur. Les employeurs doivent notamment porter une attention particulière aux normes d’emploi. Ils devront confirmer qu’ils observent les normes d’emploi dans leur rapport de 2017.

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Introduction

Every three years non-profits and businesses with 20 or more employees need to complete and file a report with the Ontario Government confirming their compliance with the Accessibility for Ontarians With Disabilities Act, 2005 (“AODA”).

Since the last compliance report deadline on December 31, 2014, there have been a number of requirements that have come into force for large organizations (those with 50 or more employees in Ontario) and small organizations (those with less than 50 employees in Ontario). However, of particular note to employers is the Employment Standard. Employers will need to confirm their compliance with the Employment Standard in the 2017 Compliance Report.

The Employment Standard

The Employment Standard is designed to assist employers make their workplaces more accessible to prospective, new and current employees with disabilities. Unlike other requirements under the AODA, the Employment Standard only applies to paid employees (not volunteers or other non-paid individuals). Briefly stated, the requirements under the Employment Standard are as follows:

  • Informing of Supports/Accessible Recruitment Process. The Employment Standard requires an employer to inform:
    1. Its employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes;
    2. Job applicants that are 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;
    3. Successful applicants of its policies for accommodating employees with disabilities when making offers of employment; and
    4. All employees, of the policies used to support employees with disabilities, including policies on the provision of job accommodations.
  • Accessible Formats. If an employee with a disability requests it, employers must consult with an employee to provide or arrange for the provision of accessible formats and communication supports for information that is: (i) needed to perform the employee’s job; and/or (ii) generally available to employees of the workplace.
  • Documented Individual Accommodation Plans (not applicable to small organizations). Employers are required to have a written process to document individual accommodation plans for employees with disabilities. The individual accommodation plan must have certain prescribed content, including the manner in which an employee can participate in the development of the individual accommodation plan, the steps that will be taken to protect the privacy of the employee’s personal information; and the frequency in which the accommodation plan will be reviewed.
  • Workplace Emergency Response Information. Individualized emergency response information must be provided to employees with disabilities if the disability makes it necessary and the employer is aware of the need. The information must be reviewed whenever the employee is moved to a different location, the employee’s overall accommodation needs are reviewed, or the organization reviews its emergency response policies.
  • Performance and Career Management. The Employment Standard requires the employer to take into account individual accessibility needs of employees with disabilities during performance management; career development; and re-deployment. For example, an employee may require a performance plan to be provided in large print.
  • Return to Work Process (not applicable to small organizations). The Employment Standard requires that employers develop a process that supports employees who have been absent due to a disability and requires disability-related accommodations to return to work. The return to work process must be documented in writing and outline the applicable steps.

Penalties for Non-Compliance

Under the AODA, if the director concludes that an organization has failed to file its compliance report, the director may, by order, require an organization to:

  1. File an accessibility report that complies with the requirements under the AODA within a specified period of time; and/or
  2. Pay an administrative penalty. Depending on several factors, including the determined severity of the impact of the contravention and the contravention history of the organization, administrative penalties for corporations can range from $500 to $15,000 per contravention.

Further, if the information contained in an accessibility report (or otherwise provided to a director) is determined to be false or misleading, the corporation could be subject to a fine of up to $100,000 for each day or part of a day on which the offence occurs or continues to occur.

Our View

The enforcement of the AODA has focussed on ensuring compliance with the reporting requirements. However, with the passage of time, we expect enforcement activities to increase.

With a deadline of December 31, 2017 looming, employers should take some time to evaluate whether or not their organization is compliant with the AODA’s various requirements. While the opportune time to ensure compliance was as the standards came into force, the next best time would be right now.