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p. 5 ACCESSIBILITY IN ONTARIO: NAVIGATING THE MINEFIELD

INDIVIDUAL ACCOMMODATION PLANS: WHAT ARE THEY AND SHOULD EMPLOYERS DEVELOP THEM?

"In 2010, a popular convenience store chain was found to have discriminated against a customer with mobility..."

"As part of its efforts to improve accessibility for employees with..."

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CONTENTS C o m p l i a n c e

4 A message from your Association’s CEO “Two key ingredients to managing organizational change is understanding the requirements and maintaining an open attitude...”

5 Accessibility in Ontario: Navigating the Minefield “In 2010, a popular convenience store chain was found to have discriminated against a customer with mobility issues when it failed...”

8 OVERVIEW OF THE AODA EMPLOYMENT STANDARD “The Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) was enacted in 2005 with the goal of creating a more accessible...”

10 Application of the aoda “The AODA applies to all public and private sector organizations which operate in Ontario, have at least one employee, and which provide...”

12 Individual Accommodation Plans: What are they and should employers develop them? “As part of its efforts to improve accessibility for employees with disabilities, Ontario has introduced the Accessibility for Ontarians...“

16 What accommodation looks like “What does accommodation look like? That’s a question most businesses across the province, big and small, are asking themselves...“

19 ENSURE AODA COMPLIANCE TODAY TO AVOID PENALTIES TOMORROW “The deadlines for ensuring compliance with certain obligations under the Accessibility for Ontarians with Disabilities Act, 2005...”

22 Understanding Accessible Customer Service “When talking about 'accessible customer service', it is relatively easy to understand how a business can be made more 'accessible' for...”

24 Filing Your Accessibility Report “The Accessibility for Ontarians with Disabilities Act (AODA) was passed in 2005, with the goal of making Ontario accessible by 2025..."


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A MESSAGE FROM YOUR ASSOCIATION’S CEO

I hope you will be able to join us on November 1, 2017, for our AODA webinar and that the material in this issue of The Voice helps you navigate successfully the AODA and its Accessibility Standards.

Two key ingredients to managing organizational change are understanding the requirements and maintaining an open attitude towards them, especially those that relate to social change. Responding successfully to the Accessibility Standards of the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) is no different. This issue of The Voice is dedicated to providing CCO’s members with the key requirements encompassed by the legislation. The challenge for our members will be to understand these requirements and determine which ones apply to their organizations, as there are different requirements depending on organizational size. Regardless of which particular requirement applies to your career college, the overarching goal of the AODA and the Duty to Accommodate addressed in the Accessibility Standards and the Ontario Human Rights Code is to make all organizations more accessible to Ontario’s disabled community. People Access has recently estimated that about 1.85 million people in Ontario have a disability. Less than half of workingage Canadians with physical and mental disabilities have a job, a significantly lower percentage than the general population,

according to Statistics Canada. Increasingly, policy makers are recognizing that this represents an important source of talent that needs to be recognized and supported by all organizations. The AODA, its Accessibility Standards and the Duty to Accommodate are positive efforts intended to not only enshrine legal protections but to also raise awareness that it not acceptable for society, employers or educators to ignore this community. This will not always be easy, but a proactive approach, as evidenced in Bryan College’s creation of a response team (described in an article within this issue), shows it can be done effectively and ultimately benefit the institution, its employees and, in our case, our students. This issue of The Voice is a precursor to our webinars that will be held – first on the AODA and then on the Duty to Accommodate. CCO has again chosen a webinar format to make it accessible to as many in our sector as possible and provide continuous training on some new and key legislative requirements. I hope you will be able to join us on November 1, 2017, for our AODA webinar and that the material in this issue of The Voice helps you navigate successfully the AODA and its Accessibility Standards.

Sharon E. Maloney | Chief Executive Officer


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DAN ATTWELL workplace lawyer at mathews, dinsdale

& clark

Dan offers a practical and modern approach to managing the workplace. Whether dealing with discipline and discharge, attendance management, accessibility, return to work obligations, layoffs, or preparing and implementing employment contracts and workplace policies, Dan helps clients look forward with a view to assisting them progress from minimum compliance to establishing and maintaining best practices. Dan has also developed a diverse practice in all areas of employment litigation, including wrongful dismissal actions, unlawful competition by departed employees, occupational health and safety, human rights, judicial reviews, appeals as well as seeking injunctive relief against unlawful picketing activity.

ACCESSIBILITY IN ONTARIO: NAVIGATING THE MINEFIELD In 2010, a popular convenience store chain was found to have discriminated against a customer with mobility issues when it failed to respond to repeated requests by the customer for automatic doors to be installed at the entrance of one of its stores.

The customer had made numerous compla ints to various managers, both at the store level and through the corporate office, but none of these complaints resulted in a timely solution. Some suggestions had been made, but there appeared to be some uncertainty within the

organization as to who was assuming responsibility to address the issue. Tired of waiting for a solution, the customer escalated the situation by filing an Application with the Human Rights Tribunal of Ontario (HRTO). It was only then that an automatic door was installed, at a cost of $5,000. A classic example of “too little too late”, the convenience store was ordered by the HRTO to pay the customer $6,000 in damages for injury to the customer’s dignity, feelings, and selfrespect arising out of the human rights violation. By changing the facts only slightly, it is easy to see how this scenario could just have easily played out in other industries. A supplier with a visual impairment requesting that purchase orders or technical specifications be provided in an accessible electronic format. Or, closer to home, a potential student with a guide dog seeking to access the educational services provided


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by a private career college. In finding that the convenience store chain had acted in a discriminatory manner, the HRTO held that a failure to respond to the complaints in a timely way amounted to a breach of the procedural duty to accommodate. What is interesting about this case, is that the entire situation could likely have been avoided had the convenience store chain implemented a process for receiving and responding to feedback about the accessibility of its stores. At the time, there was no obligation to have such a feedback process in place, but the company was clearly aware that the requirement to implement a feedback process was one of a slew of mandatory obligations which was about to take effect under one of five “Accessibility Standards” being rolled out pursuant to the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). Although the AODA had been around since 2005, the first meaningful wave of obligations to hit the private sector did not actually arrive until the Customer Service Standard rolled out at the beginning of 2012 – a couple years too late to help the convenience store chain avoid liability. Not unlike the convenience store chain, many organizations who turned their mind to the AODA did so leading up to 2012 with a view to achieving compliance with the Customer Service Standard without fully appreciating that the scope of the obligations to come were significantly broader, let alone the organizational benefits that could be derived from achieving compliance. Many other organizations dismissed the need to address the AODA on the (mistaken) belief that their obligations could be satisfied simply through a broad stroke application of the legal duty to accommodate already mandated by the Human Rights Code (the Code). The decision to roll out mandatory accessibility standards in waves was premised, at least in

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part, on the idea that a graduated introduction of the various obligations would make the objective of increasing accessibility in Ontario more manageable while recognizing that most organizations – and particularly those in the private sector – are operating with finite resources. Whatever the reason, these elements have all combined to create something of a misconception about what the AODA is all about. In a general sense, the AODA is legislation designed to change the conversation in Ontario surrounding barriers to accessibility experienced by persons with disabilities. This is achieved through a comprehensive set of obligations ranging from policy development and worker training to the dissemination of information in accessible formats and self-reporting on compliance. Understanding and properly implementing these requirements not only maximizes accessibility across the province, but also minimizes the chances of inadvertent human rights violations.

MATHEWS DINSDALE & CLARK LLP lus laboris canada global hr lawyrers

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OVERVIEW OF THE AODA EMPLOYMENT STANDARD The Accessibility for Ontarians with Disabilities Act, 2005 (AODA) was enacted in 2005 with the goal of creating a more accessible Ontario by 2025. The AODA requires organizations (and their employees) to turn their minds to issues of accessibility and to identify possible barriers which may prevent persons with disabilities from engaging in life in Ontario in five key areas. One of these five key areas is employment. As such, the AODA contains an “Employment Standard”. The Employment Standard is designed to integrate accessibility into regular workplace processes and to ensure employers consider and provide accessibility across all stages of the employment life cycle. This means the AODA must be considered when (among other things) recruiting new employees, implementing return to work processes, transferring employees, or addressing workplace emergencies. The Employment Standard only applies to employees and does not apply to volunteers or other non-paid individuals. Under the Employment Standard, employers in Ontario of all sizes are required to comply with the following obligations: • Ensure existing performance management and/or career development process are modified to ensure the needs of employees • Notify candidates about the availability of with disabilities are addressed when holding accommodation during the recruitment and performance reviews (either formal or selection process. informal) or when promoting/redeploying • Provide assessment and selection materials employees to a new job. in an accessible format. • Notif y successful candidates of the organization’s policies for accommodation 3 INFORMATION AND of employees with disabilities. COMMUNICATION

1 RECRUITMENT AND HIRING

2 RECRUITMENT AND HIRING • Provide updated information to employees whenever there is a change to existing policies on the provision of job accommodations. • Develop written processes for crafting accommodation plans. • Provide individualized workplace emergency response information to employees with disabilities. • Develop return to work processes for employees who have been absent due to disability and require accommodation.

• Provide training on the requirements of the AODA to all employees as soon as practicable after they begin employment. • Inform employees of policies used to support employees with disabilities, including policies on job accommodations. • Provide all employment-related information in accessible formats (i.e. application forms; onboarding materials). • If requested, provide information required for an employee to perform his/her job in an accessible format.


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4 POLICY DEVELOPMENT • Develop an accessible employment policy statement for your organization. • Adopt, document and maintain policies that support the implementation of the commitments made in the policy statement. • Inform employees about these policies. • Determine who needs to be trained (along with training formats and timing). • Complete accessibility training reports as required. As the deadlines for meeting many of these obligations have now passed, please ensure that your organization has reviewed all of its existing policies, onboarding, training and accommodation practices to ensure compliance with the Employment Standard and avoid penalties.

JEFF ROCHWERG associate at mathews, dinsdale

& clark

Jeff is an Associate in Mathews Dinsdale’s employment, labour, and health and safety practices. Using a proactive and business-minded approach, Jeff provides pragmatic advice on a wide range of issues, including discipline and termination of employment, employment contracts, human rights, and workplace policies.


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APPLICATION OF AODA The AODA applies to all public and private sector organizations which operate in Ontario, have at least one employee, and which provide goods, services or other facilities to other organizations or members of the public. In short, pretty much every registered business in Ontario is required to comply.

The only real distinction in compliance obligations arises from the fact that compliance deadlines vary depending on whether the organization is in the public or private sector and the number of employees. There are also a handful of exceptions for private sector organizations with fewer than 50 employees, though most requirements will eventually apply across the board.

THE FIVE ACCESSIBILITY STANDARDS the real meat and potatoes of the aoda is found in the

regulations in the form of the following five “accessibility standards”:

Customer Service – Focused mostly on policy development and staff training, the Customer Service Standard is directed at ensuring employees at all levels of an organization are aware of how to identify and address barriers to accessibility experienced by customers with disabilities, and how to interact with persons with disabilities, their service animals and their support persons. Employment – The Employment Standard imposes obligations designed to ensure that recruitment, training, performance management and career advancement processes are all accessible to employees and prospective employees with disabilities. The Employment Standard also further compliments the human rights duty to accommodate by requiring organizations to develop detailed return to work and accommodation processes intended to create predictability and transparency in the provision of workplace accommodations. Information and Communication – Where information is disseminated to workers and the public, whatever the method, the information must be communicated in a format which is accessible to persons with disabilities. Among other things, the Information and Communication Standard imposes obligations relating to how information is displayed on websites, and requires educational materials to be produced and provided in accessible and conversion-ready formats. Design of Public Spaces (Built Environment) – Applying to both new construction and redeveloped areas, the Design of Public Spaces Standard sets out specific technical requirements that must be met to ensure that recreational trails, outdoor eating areas, exterior paths of travel, parking lots, waiting rooms and service counters are all accessible to persons with disabilities. Transportation – The Transportation Standard sets out a variety of minimum standards respecting accessible features that must be available on buses, trains, ferries and taxis.


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The various requirements imposed on the private sector in these five key areas have been rolling out since 2005, with new requirements taking effect yearly. With a few minor exceptions, the AODA is now in full force and effect. An unintended consequence of the fact that the Accessibility Standards have rolled out in waves is that many private sector organizations who achieved compliance in 2012 now find themselves out of compliance because they failed to keep up with the changes – usually due to a combination of things, such as staff turnover, a misunderstanding of their obligations, or other pressing priorities. Whatever the reason, non-compliance runs the risk of fines and orders being imposed, not to mention the ‘softer’ risks of liability.

TAKING ADVANTAGE OF THE AODA One defining characteristic of the AODA is that there is no set way to achieve compliance. Like the history teacher who vaguely asks for a paper on “any significant historical event in the 20th century”, sometimes having too

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much freedom can be a bad thing. However, there are plenty of both “for free” and “for fee” resources available to get you started. Of some built-in assistance is the general requirement to prepare both an Accessibility Policy and a Multi-Year Accessibility Plan. W hen done correct ly, the Mu lti-Year Accessibility Plan, in particular, creates a 5-year strategic plan that can and should be used as a guide for the organization. Like taking a course in school, the benefit to be derived by an organization from achieving compliance with the AODA is directly correlated to how enthusiastically the AODA is absorbed and applied. Achieving technical compliance with the AODA will permit the organization to file a compliance report, giving the organization a passing grade. On the other hand, an organization that takes a genuine interest in understanding and implementing these legal requirements will not only build a more inclusive organization, but will minimize the risk of being faced with human rights violations. And that’s worth top marks.

DAN ATTWELL workplace lawyer at mathews, dinsdale

& clark

Dan offers a practical and modern approach to managing the workplace. Whether dealing with discipline and discharge, attendance management, accessibility, return to work obligations, layoffs, or preparing and implementing employment contracts and workplace policies, Dan helps clients look forward with a view to assisting them progress from minimum compliance to establishing and maintaining best practices. Dan has also developed a diverse practice in all areas of employment litigation, including wrongful dismissal actions, unlawful competition by departed employees, occupational health and safety, human rights, judicial reviews, appeals as well as seeking injunctive relief against unlawful picketing activity.


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INDIVIDUAL ACCOMMODATION PLANS: WHAT ARE THEY AND SHOULD EMPLOYERS DEVELOP THEM? as part of its efforts to improve accessibility for employees with disabilities, ontario has introduced the accessibility for ontarians with disabilities act, 1

2005 (aoda).

buried in

one of the aoda regulations is an important obligation now placed on employers: the requirement to develop

“documented individual with disabilities”.

accommodation plans for employees

but what does this mean? this article provides a brief overview of the accommodation

SARAH SMITH

legal obligations while also fostering a safe, inclusive, and

associate at mathews,

plan requirement, and how employers can both satisfy their productive workplace.

DOES THIS “INDIVIDUAL ACCOMMODATION PLAN” OBLIGATION APPLY TO MY ORGANIZATION, OR ARE WE EXEMPT? The requirement to develop documented individual accommodation plans applies to:

(a) All public sector organizations (regardless of how many employees are employed); and (b)

All private sector organizations who employ more than 50 employees.

Currently, private sector organizations that employ fewer than 50 employees are exempt from the obligation to develop documented individual accommodation plans. 1

Specifically, section 28 of Integrated Accessibility Standards, O Reg. 191/11 of the AODA

dinsdale

& clark

Sarah is an Associate with Mathews Dinsdale, and currently practices in all areas of workplace law. She represents employers before labour relations boards, human rights tribunals, and boards of arbitration. She also advises employers on various day-to-day workplace issues, including discipline and discharge, workplace investigations, and employee accommodation.


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WHAT EXACTLY IS REQUIRED OF EMPLOYERS? organizations (that are not exempt as described above) must develop individual

accommodation plans for disabled employees. additionally, employers must also have a written process for how they develop such plans.

This written process can be tailored to individual workplaces, but must include the following elements: 1. How the employee (who is requesting accommodation) can participate in the development of the plan; 2. The means by which the employee will be assessed; 3. The manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s 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 that an employee representative (e.g. a union representative) participate in the development of the accommodation plan; 5. The steps taken to protect the privacy of the employee’s personal information; 6. How frequently will the plan be reviewed and updated, and in what manner will this be done? 7. If the employer denies an individual accommodation plan, how will the reasons for the denial be provided to the employee? 8. How will the plan be provided to the employee to ensure that it is in a format that meets the employee’s accessibility needs due to the disability? When drafting the actual individual accommodation plans, employers must ensure that all such plans: (a) if requested, include any information regarding accessible formats and communications supports provided; (b) if required, include individualized workplace emergency response information; and (c) identify any other accommodation that is to be provided.


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WHAT DOES AN “INDIVIDUAL ACCOMMODATION PLAN” LOOK LIKE? as long as you are adhering to the requirements set out above, your individual

accommodation plans may be specific to both your workplace and to the employee’s

particular needs. many employers find it useful to include the following key information:

• Employee’s name, position, department, and direct supervisor(s); • Date that the plan is developed and reviewed/revised; • The employee’s particular work restrictions or limitations, based on the disability/disabilities; • The employee’s job duties that are impacted by the employee’s work restrictions, and whether these are essential requirements of the position; • Sources of expert input (e.g. has the employee provided medical documentation? If so, from whom? Has a member of management provided information about the job duties and work modifications available? If so, who?); • What accommodation measures (e.g. modified duties) will be implemented, and how long are these measures expected to last? • How often is the accommodation plan going to be reviewed? • Who is responsible for what actions, as outlined in the accommodation plan? • Signatures of both the employee and a member of management (and, if applicable, consider whether a Collective Agreement might require union involvement and/or approval in the development of this plan).

WHAT ABOUT RETURN TO WORK? DO WE NEED A PROCESS FOR THAT TOO? Employers who must prepare individual accommodation plans must also develop a return to work process for employees who have been absent from work due to a disability and require disability-related accommodations in order to return. Again, this return to work process will need to be documented, and must: 1. outline the steps the employer will take to facilitate the return to work; and 2. use documented individual accommodation plans (as described above) as part of the process. It should be noted that this AODA requirement does not replace or override other return to work processes under different statutes, such as return to work processes under workers’ compensation laws.


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HOW MUCH EXTRA WORK DOES THIS CREATE? if your organization is properly complying with other statutes, namely the ontario human rights code, it is likely that you are already fulfilling most requirement.

– if

not all

– facets

of this aoda

In other words, your organization should already be considering things like: • Any disability reported by an employee; • Any work restrictions (caused by a disability) reported by an employee; • What accommodation options have been considered and why they are or are not suitable; • How the employee is ultimately accommodated (or why accommodation was not possible short of undue hardship). While you may already be doing this, you may not have the process in writing. Even if you do have the accommodation process in writing, it may not meet all the requirements under AODA. Where many employers get into human rights trouble is in failing to document the accommodation process and all the analysis that has gone into it. The new AODA requirement for individual accommodation plans will help to protect employers in this way. In the event of a dispute about whether an employee was properly accommodated, written accommodation plans ensure that there is a record of the steps taken in the accommodation process. They also provide a record of the reported restrictions. This mitigates against an employee who claims additional restrictions that are not (yet) supported by medical documentation when they are assigned ‘undesirable’ tasks by a manager. The accommodation plan becomes a helpful quick reference that allows the manager to know what is and is not a documented restriction. More generally, these individual accommodation plans also protect the privacy of sensitive medical information, set out roles and responsibilities, safeguard against miscommunication, and ensure all stakeholders are on the same page. In turn, many disputes will be mitigated – or avoided altogether – and employees are more likely to feel included, supported, and engaged.


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WHAT ACCOMMODATION LOOKS LIKE by Dyson Wells

W

hat does accommodation look like? That’s a question most businesses across the province, big and small, are asking themselves as they work toward creating a more accessible Ontario by 2025. And it’s a question that doesn’t immediately lend itself to one clear picture. Accommodation can vary depending on the resources available, the size of an institution and the needs of the individual. It’s daunting to some and confusing to others. But for everyone it is, above all else, an opportunity. With a measured and well thought out response comes a chance not only to develop a series of campus procedures to assist in accommodation but also foster an inclusive environment that will benefit your college and its students. Adriana Costenaro is one who views the obligation to accommodate as an opportunity as much as a challenge. She cites the potential of these students as a great strength they carry with them as they enter the

campus. This mindset proved to serve her college well when, during her first year as president of Bryan college six years ago, a legally blind student enrolled in the campus’s massage therapy program. The student’s choice in program turned out to be a fitting one. “Massage therapy was actually a profession that was designed for the blind,” she notes, referring to Amma, a type of Chinese deep tissue massage. The history behind the technique was significant. The name translates to “push-pull”. It’s an ancient precursor to Chinese medicine developed over 50 0 0 years ago and consigned primarily to the blind due to their heightened sense of touch. Amma was a deeply influential technique that helped shape the practice of modern medicine and, of course, modern massage therapy.

Understanding the history of massage therapy, there was a general sense of excitement from the beginning. The student’s ambitions resonated with the staff. The question was never ‘can the student complete the program,’ but rather ‘how can staff remove any barriers in their way?’ “There was no one who said this can’t work. I think that’s important, being very positive as to how you can help this person be educated in your facility,” Adriana said. It was this approach to meeting the needs of the student that defined the way staff would handle matters of accommodation in the future. Where many would take a prescriptive approach, declaring that staff do things a certain way for the one student, Adriana recognized an opportunity to pave the way for a more proactive and comprehensive path to accommodation. She gathered staff to brainstorm solutions and invited the student to offer


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their own resolutions to challenges and feedback. A response team was formed, consisting of 11 staff members directly involved in the student’s education. Working together with the student, staff identified a number of ways to accommodate, such as printing test pages on 11x14 inch paper and providing extra lighting when requested. But, including the student in the discussion also proved to be invaluable. The program relied on in-class demonstrations that the student couldn’t see. Without these demonstrations, the student would be at a severe disadvantage. The staff were stumped, but the student quickly came up with a solution—let them participate as the mock-client in the demonstration. Doing so would allow the student to experience the palpation by feel. After the demonstrations, staff would provide the student with a video of the demonstration so they could study the technique on a large display. Coordination between an organization and an individual seeking accommodation is a quintessential piece of the province’s accessibility framework. “Ontario’s accessibility standards require organizations to consult with people with disabilities when providing alternative formats and communications supports,” the Accessibility Directorate of Ontario said in a statement. “Collaboration, creative solutions, and an open conversa-

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tion about accessibility barriers will help us to reach our goal of an accessible Ontario by 2025.” To achieve this goal, maintaining a constant stream of communication amongst staff is essential. But of course, not all instructors can meet at the drop of a hat. To remedy this, the college developed a how-to manual. The manual served as a guide for instructors and staff involved in helping the student during their training. Through incorporating a diversity of voices involved in administering the program, staff were able to take a comprehensive approach to the challenges they faced and develop pragmatic solutions that improved the training overall. Initially, staff thought that the challenge would stem from administering the training in the classroom. But, Adriana notes that her students were more than understanding and supportive. In fact, the biggest challenge was explaining the process to clients who were unfamiliar with a student’s accessibility needs. As part of the massage therapy program, students get to apply their skills to the real-world at a fully-functional clinic. Getting the customer to understand why their consent form had to be printed in a larger font or why the lights couldn’t be dimmed, for example, were not something the staff had covered in their meetings. “There were some issues because people don’t understand

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it,” Adriana says. “We had to let the client know of the challenges that the student would face in treating them, but we worked it through perfectly.” Transparency played a big role in finding a resolution. For those who came in for a massage, the message to get across was that their treatment would not be compromised as a result of these accommodations and to assure the patron that the student is skilled and capable of performing the task. Ultimately, the approach worked, and customers began to return requesting that same student. With practice, accommodation became second nature to the college. With care, they meticulously worked at massaging any kinks in their college’s accommodation plan. They adopted the push-pull technique. Instructors pushed themselves to develop teaching methods fostering inclusion in the classroom, while staff and students worked side-byside to pull it all together. In competent hands, this is what accommodation looks like. The college greatly benefited from the experience, and it found itself on stable footing as further AODA requirements were rolled out at the beginning of each year. When another student with a visual impairment enrolled at the college two years after the first, staff were prepared. “There was not one hiccup,” Adriana exclaimed proudly. “Not one.”


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ENSURE AODA COMPLIANCE TODAY TO AVOID PENALTIES TOMORROW the deadlines for ensuring compliance with certain obligations under the accessibility for ontarians with disabilities act,

2005 (aoda) have

passed and financial

penalties are being levied against recalcitrant organizations.

1 HOW IS THE AODA ENFORCED? The AODA is primarily enforced by requiring organizations to self-report. It is also enforced through the following mechanisms: • The Accessibility Directorate of Ontario (the ADO) oversees the day-to-day administration of the AODA and has the power to issue orders and impose penalties. • Inspectors are appointed to conduct audits, ensure compliance, issue orders and (if necessary) lay charges. • The License Appeal Tribunal (the Tribunal) adjudicates appeals from organizations on AODA compliance matters.

2 IS THE TRIBUNAL UPHOLDING PENALTIES AGAINST EMPLOYERS WHO FAIL TO COMPLY WITH THE AODA? A number of Tribunal decisions demonstrate the extent of the charges being laid and the penalties for non-compliance. The orders and penalties stem from the requirement that all private sector organizations with more than 20 employees file an Accessibility Report.

JEFF ROCHWERG associate at mathews, dinsdale

& clark

Jeff is an Associate in Mathews Dinsdale’s employment, labour, and health and safety practices. Using a proactive and business-minded approach, Jeff provides pragmatic advice on a wide range of issues including discipline and termination of employment, employment contracts, human rights, and workplace policies.


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In one case, the organization filed an Accessibility Report after receiving an order and penalty from an Inspector. As the requisite compliance had been achieved, the Tribunal ordered the formerly non-compliant organization to pay a $500 fine. In another decision, a $250 fine was levied as the organization no longer had more than 20 employees. However, a fine was still imposed because the organization had more than 20 employees at the time the Accessibility Report was due. This decision suggests administrative penalties will be imposed for retroactive infractions. The Tribunal imposed these fines despite the following defences being submitted: • The employer was unaware of the need to file an Accessibility Report. • The person who the employer directed to file the Accessibility Report was no longer with the organization. • The employer directed its bookkeeper to file the Accessibility Report prior to the deadline and did not become aware of its non-compliance until the order was received. • The order requiring the employer to file the Accessibility Report was sent to the wrong address. The rejection of these defences demonstrates that the Tribunal views the employer as having the ultimate responsibility to ensure compliance with its AODA obligations.

WHAT FACTORS DOES THE TRIBUNAL CONSIDER IN ASSESSING PENALTIES? In these decisions, the Tribunal articulated the factors it will consider when determining enforcement penalties for AODA non-compliance: • Determining whether the AODA contravention is “major”, “moderate”, or “minor”: –– A contravention is major where it involves the violation of a priority requirement (i.e. one that may pose a health/safety risk to persons with disabilities). –– A contravention is moderate where it involves the breach of a requirement for organizational preparedness. –– A contravention is minor where it involves the infringement of an administrative requirement. • After determining the severity of the AODA contravention, the Tribunal will assess the organization’s history of non-compliance over the “current two reporting cycles”.


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In the above referenced decisions, the failure of each organization to file the Accessibility Report was deemed a “minor contravention”. This is because the requisite compliance had been achieved and the importance of that reporting requirement was now fully understood by the organization. Lastly, the Tribunal held that in each case, the organization was a first-time offender with no history of AODA contraventions. T hou gh ad m i n ist r at iv e f i ne s i n t he aforementioned Tribunal decisions are considered “minor”, they demonstrate the AODA is being actively enforced and that adjudicators are weighing the severity of noncompliance.

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with disabilities). Contraventions of “moderate” or “major” AODA requirements will undoubtedly lead to increased penalties. At a maximum, the AODA contemplates daily penalties of $100,000 for corporations and $50,000 for individuals for major, repeated contraventions. Employers should ensure that they are in compliance with their AODA obligations today in order to avoid penalties tomorrow.

4 WILL THERE BE LARGER PENALTIES FOR NONCOMPLIANCE? Some of the compliance obligations now required fall in the “moderate” or “major” category. This is because they necessitate a level of organizational preparedness (i.e. developing accessibility policies and plans) or affect health and safety (i.e. developing a workplace emergency response plan for persons

about: MATHEWS, DINSDALE & CLARK LLP

First established in Toronto, and recently recognized by Canadian Lawyer magazine as one of the Top 10 Labour and Employment boutiques, Mathews Dinsdale’s 50+ lawyer firm now has offices in three provinces and has represented clients across Canada for more than 60 years. It is the Canadian member of Ius Laboris, the world’s largest alliance of workplace law firms. Mathews Dinsdale specializes exclusively in all areas of labour and employment law, representing a broad range of employers in both the public and private sectors.The firm’s public sector practice includes representation of municipalities, school boards, private colleges, community service groups, police services, providers of support services, hospitals, long-term care facilities, district health units, and numerous not-for-profit organizations.


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UNDERSTANDING ACCESSIBLE CUSTOMER SERVICE When talking about “accessible customer service”, it is relatively easy to understand how a business can be made more “accessible” for customers through the use of physical improvements to the physical space. Install automatic doors and ramps instead of stairs. Use wider aisles and lower counter heights. But the Customer Service Standard – the first of five standards to roll out under the Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) – is about much more than that. In fact, it’s not really about that at all. Or at least not directly. Accessibility obligations relating to the built environment are set out in the Design of Public Spaces Accessibility Standard. As it relates to accessible customer service for persons with disabilities, the Customer Service Standard is less about making changes to the physical space and more about requiring employees at all levels of the organization to turn their mind to the concepts of accessibility and inclusiveness. That way when barriers to accessibility are identified, the immediate response is not “there’s nothing I can do” but rather “let’s see what can be done”.

I AM A PRIVATE CAREER COLLEGE. DOES THIS REALLY APPLY TO ME?

also be given to other categories of potential “customers”.

For example, does your organization have librarYes. The Customer Service Standard applies ies or boardroom facilities which are available to both all public sector and private sector to members of the public? What about a gym, organizations, regardless of the size of the workshop or restaurant? organization, who provide “goods, services or facilities”. With a definition this broad, it is WHAT DO I HAVE TO DO? hard to imagine an organization which is not required to comply. The Customer Service Standard requires all obligated organizations to develop, implement and maintain policies and processes governing WHO ARE MY “CUSTOMERS”? the organization’s provision of goods, services There is no precise definition of “customers” and facilities to persons with disabilities. These under the Customer Service Standard, but policies and processes are required to address implicitly the term is intended to cover any the use of assistive devices, service animals and person who is in receipt of the organization’s support persons by persons with disabilities. “goods, services or facilities”. Additional obligations include the requirement to: Who pays you money? Who uses your services? For a private career college (PCC), the primary focus is on students, including alumni, current and prospective students. Consideration should

• Post a notice of any temporary disruption to any service or facility which may be relied on by persons with disabilities, including information about the reasons for the


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disruption, the anticipated duration, and a worth considering. description of alternative facilities that are What the Customer Service Standard does available; require is for the bookstore employees to iden• Ensure all employees, volunteers, policy tify the potential barriers to accessibility and makers, and persons who provide goods, to determine the best way to minimize, if not services or facilities on behalf of the or- entirely eliminate, these barriers. ganization receive training on interacting A willingness to temporarily flex the strict with persons with disabilities; no-return, no-exchange policy might address • Prepare a training policy and keep records the student’s concern with minimal impact on of all training provided; and bookstore operations. And by posting a notice of the temporary disruption to the main ramp, • Establish and maintain a process for re- along with alternative route suggestions, the ceiving and responding to feedback about student can plan their route more efficiently accessibility issues. or elect to make the trip on a different date. When thinking of accessible customer service, Accessible customer service will look different think of it this way: depending on the type of organization, the manner in which the organization interacts A student in a wheelchair wants to buy some with its customers, the individual needs of the school-branded sweatpants from the campus customers with disabilities, and the barriers bookstore. Unfortunately, the main ramp lead- to accessibility identified. To be effective, the ing into the building is being resurfaced, and it requirements of the Customer Service Standard takes the student 15 minutes to find an alterna- should be applied to each organization in a way tive wheelchair-accessible route into the store. that is tailored to the organization’s individual Upon arrival, the student discovers that the circumstances. change room at the back of the store is too small to accommodate a wheelchair. Due to the store’s inflexible no-return, no-exchange policy, the student is faced with the prospect of buying sweatpants that do not fit, or not buying them at all.

At the end of the day, whether motivation is derived from the carrot (a genuine desire to improve accessibility) or the stick (a fear of the consequences of non-compliance with a legal obligation), it is incumbent on all obligated organizations to review their operations to The Customer Service Standard does not re- ensure all of the requirements of the Customer quire the PCC to build a temporary ramp while Service Standard are being met. the main ramp is being resurfaced, or build a bigger change room that can accommodate a wheelchair – though both of these might be DAN ATTWELL

workplace lawyer at mathews, dinsdale

& clark

Dan offers a practical and modern approach to managing the workplace. Whether dealing with discipline and discharge, attendance management, accessibility, return to work obligations, layoffs, or preparing and implementing employment contracts and workplace policies, Dan helps clients look forward with a view to assisting them progress from minimum compliance to establishing and maintaining best practices. Dan has also developed a diverse practice in all areas of employment litigation, including wrongful dismissal actions, unlawful competition by departed employees, occupational health and safety, human rights, judicial reviews, appeals as well as seeking injunctive relief against unlawful picketing activity.


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IT’S EASY TO FILE YOUR ACCESSIBILITY COMPLIANCE REPORT The Accessibility for Ontarians with Disabilities Act (AODA) was passed in 2005, with the goal of making Ontario accessible by 2025. Businesses with one or more employees need to be compliant with Ontario’s accessibility laws. Additionally, a critical deadline is approaching for businesses with 20 or more employees. If your business has 20 or more employees you are legally required to file a 2017 accessibility compliance report by December 31, 2017.

The compliance report is a series of yes or no questions. You are asked to download a quick and easy accessibility compliance reporting form at ontario.ca/AccessibilityReport. Organizations across Ontario are already filing their 2017 accessibility compliance reports. If you have any questions or concerns, we are here to help. For a complete list of your requirements, visit ontario.ca/accessibility.

FILING YOUR ACCESSIBILITY REPORT WHAT IS ACCESSIBILITY?

WE CAN HELP

It simply means giving people of all abilities opportunities to participate in everyday life. 1 in 7 people in Ontario has a disability. That’s 1.65 million Ontarians. By 2036 that number will rise to 1 in 5 as Ontario’s population ages. Businesses that are accessible will be able to better reach this massive segment of Ontario’s consumers. Being inclusive benefits our society, businesses and economy.

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There are additional resources to assist organizations in meeting Ontario’s accessibility laws. For a complete list of your requirements, tools, resources and templates, visit ontario. ca/accessibility. Organizations can find help by phone or email, or login to a series of online Q&A sessions.

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AODA  

This issue is available for download in an accessible format. To access this material, visit www.careercollegesontario.ca/magazine. The Vo...