The Ontario government is seeking public feedback on proposed new accessibility requirements under the Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA” or the “Act”). All organizations in Ontario that provide goods or services and have at least one employee will be subject to new accessibility obligations. The accessibility requirements will then be finalized in the Integrated Accessibility Regulation, and eventually passed into law under the AODA.
Most organizations will already be familiar with aspects of the AODA. Enacted in 2005, the AODA attempts to make goods, services, accommodation, employment, buildings and structures, and many other aspects of everyday life, more accessible for persons with disabilities. The AODA provides for the development of “Accessibility Standards” in the following key areas:
1. Customer Service
2. Information and Communications
5. Built Environment
The standards specify the persons and organizations to which they apply, and require such organizations to implement various measures for the identification and removal of barriers within specified timelines.
THE CUSTOMER SERVICE STANDARD
On January 1, 2008 the accessibility standard for customer service became law. The standard applies to the public sector and every other person or organization that provides goods or services and has at least one employee. The standard contains a number of obligations that such organizations must meet in order to ensure that their goods and services are fully accessible. For example, organizations must develop and implement policies and procedures to ensure that their goods or services are equally accessible to persons with disabilities, and that they are provided in a manner that respects the dignity and independence of persons with disabilities.
The Customer Service Standard also requires organizations to ensure that certain employees, primarily those that deal with the public, receive training in:
- how to interact with persons with various types of disabilities;
- how to interact with persons with disabilities who use assistive devices, guide dogs, or a support person;
- how to use equipment or devices that may help with the provision of goods or services to a person with a disability; and
- what to do if a person with a disability is having difficulty accessing the organization’s goods or services.
The public sector was required to comply with the Customer Service Standard as of January 1, 2010. The private sector will be required to be in compliance by January 1, 2012.
PROPOSED INTEGRATED ACCESSIBILITY STANDARD
The proposed Integrated Accessibility Standard consolidates accessibility requirements in three of the five key areas. These are:
- Information and Communications
The consolidation of three standards into one integrated regulation was a response to industry concerns about the compliance burden associated with adhering to five accessibility standards, each with different, but overlapping, requirements. The integrated regulation attempts to ease this burden by having a body of general requirements that apply to each of the three standards listed above, followed by specific requirements in each area.
The proposed regulation classifies organizations in the following way:
- Government of Ontario
- Broader public organizations with 50+ employees
- Broader public organizations with 1 – 49 employees
- Private and not-for-profit organizations with 50+ employees
- Private and not-for-profit organizations with 1 – 49 employees
Private and not-for-profit organizations are generally given more time to comply with the standards than the government and the broader public sector. Similarly, smaller organizations with 1 – 49 employees are exempted from many aspects of the proposed requirements. These exemptions include the requirement to develop Accessibility Plans and written accessibility policies, and the compliance reporting obligations.
All organizations will be required to develop and implement policies and practices describing how they will implement the accessibility standards and meet the accessibility requirements. The government and the broader public sector, as well as private and not-for-profit organizations with 50 employees or more, will be required to document the policies in written form, and provide them, upon request, to any person. These organizations will also be required to develop Accessibility Plans that detail how accessibility will be achieved within the timeframes in the Integrated Accessibility Regulation. Private organizations with fewer than 50 employees are exempt from the requirement to develop an Accessibility Plan. All organizations will be required to provide training to employees on the requirements of the accessibility standards, and on achieving an accessible workplace.
ACCESSIBLE INFORMATION AND COMMUNICATION REQUIREMENTS
The Accessible Information and Communications Requirements will require organizations to ensure that their websites and web content conform to the W3C Web Content Accessibility Guidelines Version 2, initially at level “A”, and eventually increasing to level “AA”. This requirement will be phased in starting with new websites, and then existing websites. Private and not-for-profit organizations with fewer than 50 employees are exempt from this requirement. In addition the requirements only apply to websites and web content which an organization can control directly, or through a contractual relationship, and where meeting the requirements is technically feasible.
For information that is not on an accessible website, all organizations will be required to provide the information in accessible formats for persons with disabilities, upon request. Organizations will be required to consult with the person making the request in order to determine the suitability of the accessible format. Organizations will also be required to provide notice to the public regarding the availability of information in various accessible formats.
Public and private elementary and secondary schools, as well as post-secondary educational or training institutions will be required, where notice is given, to provide educational or training resources in accessible formats. Such organizations will also be required to provide training to educators related to accessibility awareness and accessible course design and instruction.
ACCESSIBLE EMPLOYMENT REQUIREMENTS
The Accessible Employment Standard will require organizations to provide accessibility for persons with disabilities throughout the employment life cycle. The requirements will apply to recruiting, hiring and retaining persons in paid employment, whether full-time or part-time, including apprenticeships. The requirements will not apply to unpaid employment, volunteers, co-op placements, and high school work experience placements.
For recruitment, organizations will be required to notify applicants that accommodations will be provided to enable their participation in the recruitment process. This includes providing application and selection materials in accessible formats. Successful applicants must be notified of the organization’s individual accommodation procedures for employees.
In terms of existing employees, the Accessible Employment Standard will require organizations to implement a number of new measures. These include providing information in accessible formats and informing employees about how the organization supports employees with disabilities in the workplace. All broader public sector organizations, and private and not-for-profit organizations with 50 employees or more, will be required to develop individual accommodation plans for employees with disabilities upon request. The plans will address the individual assessment and accommodation of the employee and the timelines by which the accommodations will be provided. Organizations will also be required to have a documented procedure for the return to work of employees absent due to illness or injury. The procedure must provide for the development of individual accessibility plans where appropriate.
ACCESSIBLE TRANSPORTATION REQUIREMENTS
The Accessible Transportation Standard will apply to persons or organizations that provide the following types of services:
- Conventional Transportation
- Specialized Transportation
- Public School Transportation
- Other Transportation Services
Voluntary or faith-based transportation services, federally-regulated transportation services, emergency response vehicles, and amusement park rides are exempted from the application of the standard.
Organizations that provide transportation services falling within the ambit of the regulation will be required to implement a number of programs and policies to make their services more accessible. These include:
- Developing accessibility plans describing how accessibility is being achieved.
- Developing and documenting emergency preparedness and response procedures that provide for the safety of passengers with various disabilities.
- Developing policies and procedures requiring conveyance operators to provide assistance to persons with disabilities.
- Ensuring that persons with disabilities are not charged a higher fee for the transportation service, or a fee for stowing assistive devices.
- Ensuring that additional fares are not charged for support persons accompanying a passenger with a disability.
Transportation service providers are subject to numerous additional obligations under the proposed regulation. In addition, the Ministry of Transportation has posted proposed changes to Ontario Regulation 629 “Vehicles for the Transportation of Physically Disabled Passengers” to modernize the technical requirements for highway vehicles.
ENFORCEMENT INITIATIVES AND DESIGNATED TRIBUNAL
The AODA contains a fairly robust enforcement mechanism to ensure compliance with the accessibility standards. There are a number of self-reporting requirements placed on persons and organizations. Inspectors appointed under the Act may enter premises without search warrants to determine an organization’s compliance with the standards. The Act also provides for the appointment of directors and grants them the authority to issue administrative monetary penalties and compliance orders to organizations that fail to adhere to an accessibility standard. Failure to comply with these orders is an offence under the Act and is punishable by a fine of up to $50,000 for each day of non-compliance for a person, and up to $100,000 for each day of non-compliance for a corporation.
The proposed Integrated Accessibility Regulation will also contain a detailed enforcement scheme with administrative monetary penalties (“AMPs”). The proposed regulation indicates that AMPs will be considered where other efforts to assist a non-compliant organization have been unsuccessful. AMPs will not exceed $2,000 in the case of a non-corporate organization, and $15,000 in the case of a corporation. The penalty amount will be determined by the compliance history of the organization and the severity of the impact of the non-compliance on persons with disabilities. AMPs can be issued by a director appointed under the AODA, and can be appealed to the designated tribunal.
The Licence Appeal Tribunal (the “LAT”) will be the designated tribunal that will hear appeals under the AODA. The government deemed the LAT to be the most suitable tribunal since it currently handles appeals relating to regulatory compliance. The LAT, however, will not hear complaints from individuals about violations of accessibility standards.
PROPOSED TIMELINES FOR COMPLIANCE
The timelines for compliance vary depending on the particular accessibility requirement, and the size and nature of the particular organization. Organizations should review the proposed compliance timelines and become familiar with the compliance schedule applicable to their operation. All proposed compliance timelines by sector can be viewed at the Ontario’s Regulatory Registry website.
In Our View
It is important for employers to remember that an organization’s compliance with the accessibility standards under the AODA does not necessarily mean it has met its obligations under the Human Rights Code. The government has made this clear by stating: “The Accessibility for Ontarians with Disabilities Act, 2005 does not diminish existing legal duties under the Code and other laws with respect to accommodation of persons with disabilities.” Organizations will still be required to accommodate to the point of undue hardship.
Employers may review the proposed accessibility requirements by visiting Ontario’s Regulatory Registry website.
The government is encouraging organizations to submit their comments on the new accessibility requirements prior to the conclusion of the public consultation period on October 16.
For further information, please contact Raquel Chisholm at (613) 940-2755.