AODA Refresher

The purpose of The Accessibility for Ontarians with Disabilities Act, 2005 and its regulations (the “AODA”) is to “develop, implement, and enforce standards for accessibility related to goods, services, facilities, employment, accommodation, and buildings” by 2025. 

To fulfill this purpose, the AODA mandates that Ontario organizations – including all levels of government, the private sector, and non-profits, follow accessibility standards to become more accessible to persons with disabilities.  Under the AODA, like under the Ontario Human Rights Code (the “Code”), the “workplace” extends to anywhere a work function is performed.

The AODA and the Code share definition of disability and work together to promote equality and accessibility through hhuman rights principles helping to form and guide how AODA standards are met.  Where there is conflict between the AODA and the Code, the Code governs.         

What does this mean for you?  As an employer in Ontario, you must comply with the AODA’s accessibility standards and make your workplace practices accessible to potential and current employees with disabilities.  In doing so, you are required to recognize, prevent, and remove disability barriers within the time periods specified in the Accessible Employment Standard under the Integrated Accessibility Regulation – or face what could be a significant administrative (and daily) penalty that will depend on the severity and history of your organization’s contraventions of the AODA.  This Standard establishes measures, policies, practices and other requirements for the identification and removal of employment barriers for persons with disabilities that differ depending on the size, class, industry sector or type of your organization.

What is a disability? A disability under the AODA and the Code is:

1. Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device;
2. A condition of mental impairment or a developmental disability (e.g., autism or FASD);
3. A learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language (e.g., Dyslexia, dysgraphia or dyscalculia);
4. A mental disorder (e.g., anxiety disorder or mood disorders such as depression); or
5. An injury or disability for which WSIB benefits were claimed or received.

Accessible Employment Standard Requirements You Should Already Have in Place:

For large businesses and non-profits (50 and above employees), full compliance should have occurred by January 1, 2016.  Public sector organizations were to have filed their Accessibility Compliance Reports by December 31, 2019 and then every two years thereafter. 

For small businesses (1-49 employees) and non-profits numerous requirements should already be in place.  Examples include:

• Notifying: (a) employees and the public about the availability of accommodation for applicants with disabilities in recruitment process (e.g., job postings on your website); and (b) job applicants selected for interviews that accommodations are available upon request. 
• If job applicants request accommodation, consulting with them to provide suitable accommodation. 
• When making employment offers, notifying successful applicants of your Accommodation Policy for Employees with Disabilities (AODA compliant). 
• Notifying your employees of your Accommodation Policy for Employees with Disabilities and providing them with updated information whenever changes are made to it.   
• Providing workplace information (e.g. job descriptions, manuals, company newsletters, bulletins about company policies and health and safety information) in accessible formats upon request.
• Considering the needs of an employee with disabilities as part of your performance management or internal career development processes (e.g., when holding performance reviews).

Upcoming Compliance Deadlines:

AODA Compliance Report – Private Sector or Not-For-Profit Organizations with 20+ Employees, must file an Accessibility Compliance Report by December 31, 2020 and every three years thereafter.  Such a report is a self-assessment (read confirmation) of your organization’s status in terms of meeting compliance all of its AODA accessibility requirements. 

Accessible Websites:  If you are alarge private, not-for profit organization or a public sector organization, you are required to make your websites accessible.  This means, you must ensure that all of your public websites and web content posted after January 1, 2012 meets the WCAG 2.0 Level AA standard, other than live captions and pre-recorded audio descriptions (criterial 1.2.4 and 1.2.5), by January 1, 2021.  The Ontario government and a number of service providers have posted guidelines to assist employers with ensuring that their websites are accessible (e.g. see https://www.essentialaccessibility.com/blog/aoda-website-compliance).

Take Aways:
As always be informed and proactively apply your knowledge to promote and support the goals of equality and accessibility in your workplace. When you and your employees are aware of your obligations under the AODA and the Code, you not only avoid costly administrative penalties, human rights applications, law suits and public relations nightmares, but also create and support a workplace culture that values patience, respect, kindness, sensitivity and an appreciation for differences.  Such values are pivotal to achieving equality and accessibility as not all disabilities are readily apparent or “visible”.  That co-worker who doesn’t like her desk rearranged and is easily upset by change and loud noises may not be “difficult” but autistic.  That employee who can’t seem to remember instructions or company policies and procedures that they were trained on and once successfully applied and now gets flustered when pressed to apply them, may not be “lazy” or “incompetent” but have a brain injury.  Each requires accommodation and related supports to ensure equal access and participation in the workplace.

Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website.  Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.