Posted on September 21, 2011 by Lisa Stam

AODA for Employers Part 3: Where's the Teeth?

This is Part 3 of my three part series on the Accessibility for Ontarians with a Disability Act, 2005.  In the first post, I discussed the Customer Service Standard and in the second post, I outlined the Integrated Accessibility Standards.  Both standards are regulations under AODA and set out further detail on the requirements of businesses and workplaces to become accessible for individuals with a disability.

AODA Penalties for Non-Compliance

What are the penalties for failing to comply with AODA?  While AODA lays out the basic framework for how the compliance mechanism will be set up, the details are in the Integrated Accessibility Standard.  The compliance provisions expressly apply to both the Customer Service Standard and the Integrated Accessibility Standard.

In short, organizations can face fines of a daily penalty up to a maximum of $100,000 against the corporation and $50,000 against an individual, in addition to other non-monetary remedial penalties permitted by AODA.

Under AODA, inspectors have the authority to carry out an inspection by entering a business without a warrant, and may require production of documents or data, and/or interview any person present in the business on matters relevant to the inspection.

Where's the Teeth?

AODA’s objective is to encourage corporate compliance. There is no individual compliant mechanism set out in AODA, and the Ministry will not be pursuing individual complaints about an AODA violation.  The Ministry may, however, look into patterns of complaints about certain organizations, but again, with a view to the organization complying, rather than a focus on prosecution. 

Where we will see all the action for individual complaints - and for the respondent employers - is at the Human Rights Tribunal of Ontario.  For anyone with an individual complaint about his or ability to access a particular goods or service in Ontario, he or she can file a discrimination claim at the Tribunal. 

AODA specifically provides that any law (e.g. the Human Rights Code) that imposes a higher level of accessibility shall prevail, and the Human Rights Tribunal continues to issue awards upholding the paramountcy of the Human Rights Code.

Because the AODA standards came into effect for the public sector in 2010, we are already seeing cases come out of the Tribunal that cite AODA and its regulations as the minimum accessibility standards that organizations should meet.   

Human Rights Tribunal Case Law

For example, in Palangio v Cochrane (Town), the employer was ordered to pay $10,000 to a town counselor because of the manner in which the council addressed (or initially, failed to address) his requests to record the council meetings due to his low hearing.  In that case, the fellow council members suspected he was leaking details to the media and refused his request.  Among other things, the Tribunal held that the town of Cochrane failed to train its employees on how to deal with AODA complaints.

As with so many discrimination cases, the process and method of communicating with individual complainants remain key issues that trigger awards.  For example, in Wozenilek v. 7-Eleven Canada Inc., the Tribunal awarded an individual who uses a wheelchair $6,000 because his local Seven-7 convenience store dilly-dallied in installing an automatic door device.  The Tribunal specifically cited the AODA standards and held that while the Customer Service Standard didn't kick in for private sector businesses until January 1, 2012, Seven-7 knew it was coming down the pipe, has the deep pockets to install a relatively inexpensive device, and was contemplating doing so anyways.  It was the failure to respond to the individual in a timely, effective manner that likely tipped the balance the most. 

Take-Away for Employers 

While the AODA feel-good compliance framework may not sound very threatening, employers must be aware of the likely increase of discrimination claims at the Human Rights Tribunal.  It may prove to be a better use of resources to comply up-front, rather than waiting for an individual to complain about their inability access your goods or services, or for an employee to file a claim for discrimination in the workplace.  

 

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Posted on September 21, 2011 by Lisa Stam

AODA for Employers Part 1: Customer Service Standards

The Accessibility for Ontarians with Disabilities Act ("AODA") has been around since 2005, but the specific obligations for employers do not start to kick in until 2012.  This is the first of a series of blog posts I will be writing to discuss the requirements of AODA for employers.

AODA lays out the general framework for ensuring Ontario businesses and workplaces are accessible to people with a disability.  The Regulations made under AODA lay out the details of specific requirements to comply with AODA.  So far, there are three Regulations:

  1. Accessibility Standards for Customer Service, Reg. 249/07
  2. Exemption from Reporting Requirements, Reg. 430/07
  3. Integrated Accessibility Standards, Reg 191/11

The main requirements are in the first and third Regulations, with the Employment Standards set out in detail in the third Regulation, the Integrated Accessibility Standards.  This post will discuss the first Regulation, the Customer Services Standards.

Customer Service Standards

The first regulation outlines the requirements for businesses to ensure customers can access their goods and services.  The public sector had to comply by 2010 and the private sector must comply by January 1, 2012.

The specific requirements include:

  • establish policies, practices and procedures governing the provision of goods or services to persons with a disability;
  • permitting the use of service animals and support persons;
  • notifying the public if there is a temporary disruption of goods or service;
  • ensuring your staff are trained about the provision of goods and services to persons with a disability;
  • establishing a process for receiving and responding to feedback about the manner in which you provide goods and services; and
  • ensure the format of documents that you are required to provide to a person with a disability is in a format accessible to that person.

Several of these requirements are common sense items that most business probably already meet, such as allowing a service animal into your store.  Others, such as training and establishing a feedback process may require more pro-active steps.

Because the public sector has already had to comply for a year and a half, there are plenty of helpful resources out there, including detailed guides on the Ontario government website.

Tricky Areas for Employers

While most employers are happy to get behind the concepts of the Customer Service Standards, I've had some clients raise concerns about both the cost and the logistics of compliance.  For example, the cost of providing a large amount of materials in Braille can be prohibitive for a small business or even a large business that runs at a low profit. 

The purpose of the legislation is to ensure the parties involved discuss accessibility, that those requiring accessibility are included in that dialogue, and that alternative formats and approaches are considered.  No where, for example, does the legislation require that all businesses must always produce a Braille version of their materials, a prohibitively expensive proposition for some businesses. 

Rather, if a customer requests an accessible format, the provider of goods and services "shall give the person the document, or the information contained in the document, in a format that takes into account the person's disability".  In a restaurant, for example, the "format" could include simply reading the menu out to the customer.  Braille documents are expensive to produce, and frankly, many people who are blind or have low vision either don't read Braille or prefer other formats.

The point of the legislation is to not assume and to ask the person effected.  Having said this, employers should expect to shoulder the cost of accessibility when required to do so.

Take Away for Employers

The Customer Service Standard focuses on your company's obligations to customers and members of the public, not on your obligations as an employer to your employees.  The main obligation that impacts the employment relationship will be the training requirements.  Staff must "receive training about the provision of its goods or services to persons with disabilities".

A good example of where this amounted to litigation and a $10,000 award against the employer is in the case of Palangio v Cochrane (Town) 2011 HRTO 1491, issued by the Human Rights Tribunal of Ontario last month.  In that case, the applicant was elected as a member of the Town Council who made a request for certain tools, such as permission to record meetings, to enable him to better hear the debate in council meetings. 

He was initially denied the request because other members of Council believed he was in fact attempting to surreptitiously record the meetings for ulterior purposes.  The Tribunal held that the ability to replay meetings was directly related to his disability of low hearing.  One of the findings of the tribunal was that the employer should have trained its staff (i.e. the other members of council) on how to deal with requests for accessibility. 

While AODA does not provide a direct complaint system for individuals (more on this in a future post on AODA's teeth), individuals can take their concerns directly to the Human Rights Tribunal.  It is at the Tribunal where we will continue to see AODA act as a minimum floor above which employers must comply. 

Has your workplace run into any particular challenges with preparing for AODA complaince?  Any unique obstacles you are facing at this point?

Stay tuned for my next posts on the AODA Employment Standards and whether AODA has any teeth...

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Posted on September 2, 2011 by Lisa Stam

Top 25 Blogs of 2011 Nomination

I have recently had the honour of being nominated for the LexisNexis Top 25 Labor and Employment Law Blogs of 2011.  Despite even LexisNexis spelling "labour" incorrectly, I feel quite humbled and privileged to be included on the list. 

My Shameless Plug

Now for my shameless plug - LexisNexis is inviting readers to visit their site and vote on the nominations to determine who will be on the final list.  Every comment posted on their Labour and Employment Law Community page (where the nominees are listed) counts as a vote.  It takes less than a minute to post the comment.

At the very least, it's a great excuse to see what other employment law blogs are out there - most are US based, so it's an opportunity to expand beyond the Canadian market.

End of shameless plug.  To anyone who does post a comment as a vote, thank you very much. 

Excellent Canadian Blogs

The LexisNexis list focuses on the US, but there are a number of excellent Canadian blogs that I read regularly and should have made the list:

 ...and many more that I know I have inadvertently missed.  Feel free to email me if you think I should have added another to this list.

SEPTEMBER 13, 2011 UPDATE:

Thank you to everyone who kindly took the time to nominate my blog.  I'm happy to announce that the blog was selected as one of the LexisNexis Top 25 Labor & Employment Law Blogs of 2011.  I appreciate the support and remain humbled to be included on the list.

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