Ontario employers given failing grade on AODA

Failure to comply with accessibility laws could leave employers with whopping fines as province steps up enforcement
|Canadian HR Reporter|Last Updated: 03/24/2014

By Liz Bernier

Early last year, Doug Mac-Leod received a rather distressed phone call from a client.

The client — one of the larger employers MacLeod’s law firm represents — had just received notice from the Ontario government that it was not in compliance with the Customer Service Standard under AODA, the Accessibility for Ontarians with Disabilities Act.

“They’d never heard of the legislation before, despite the fact it was quite a large employer,” said MacLeod, who has offices in Toronto and Barrie, Ont.

The enforcement notice set out the relatively steep fines the employer could face if it did not comply within 15 days — which it successfully did.

“So that was kind of a good news story, from my perspective. But not all employers react that way,” said MacLeod.

As of November 2013, about 70 per cent of eligible businesses in the province still hadn’t complied with the Customer Service Accessibility Standard under AODA.

That standard came into force on Dec. 31, 2012, and required employers with 20 or more employees to submit a plan to the government detailing the organization’s strategies for accommodating customers with disabilities, training staff and receiving feedback from customers.

“Essentially, 36,000 organizations with 20 or more employees had, as of last fall, not filed the mandatory access report. And they’d had five years to prepare and another 10 months past the deadline,” said David Lepofsky, a Toronto lawyer and chair of AODA Alliance, who filed a freedom of information request to obtain that information.

“So what the government did in response was to write (enforcement letters) to 2,500 of the 36,000. And that is a drop in the bucket.”

Focus shifts from awareness to enforcement

The provincial government needs to take a stronger stance toward enforcing the standard, said Lepofsky — enforcement letters alone aren’t enough.

“All they’re trying to enforce right now, from what we can see in this initiative, is the requirement to file a self-report. We want them to go further. They are obliged to go further and to see if people are doing what they say they’re doing,” he said, adding that audits and inspections are also among the enforcement tools available to the government.

Those 2,500 enforcement notices were just an initial step in the government’s shift in focus from raising awareness of the legislation to enforcing compliance, according to Brigitte Marleau, senior advisor, media and communications, at the Ontario Ministry of Economic Development, Trade and Employment in Toronto.

“In January 2014, we took the next step by starting to issue director’s orders with administrative monetary penalties to those organizations that still did not submit a 2012 report. Organizations that fail to respond to director’s orders can be prosecuted, where necessary,” she said.

“We will continue to pursue compliance and enforcement action to bring more private sector organizations into compliance with this important piece of legislation. And we will continue to work hard — including through audits and inspections, where warranted — to improve private sector compliance.”

The government is also developing a compliance plan that will be available to the public when it is finalized, said Marleau.

But that compliance plan should encompass more than just the customer service standard, said Lepofsky.

“We also want that plan to cover not only the customer service standard… but other standards (that) have gone into effect since 2011. There’s a number of other enforceable requirements.”

Severe fines, penalties

There are a number of tools at the government’s disposal for enforcing compliance with AODA standards.

As things stand, fines and penalties can be quite severe for employers that are not in compliance, according to Parisa Nikfarjam, a lawyer at Rubin Thomlinson in Toronto.

“It starts with a non-compliance letter and then penalties range from $200 to $2,000 for individuals, and then $500 to $15,000 for corporations. On top of that, though, the inspectors have the right to come in and inspect the property and ask for information on how you’re making your premises accessible, what kind of policies, what kind of accessibility plans you have,” she said.

“If there’s any false or misleading information, if there’s any obstruction to that inspection or if you fail to actually comply with an order… if you fall into that category, for individuals it’s $50,000 per day, for each offence, and then for corporations, it’s $100,000 a day.

“So AODA, as much as there’s really helpful guidance in terms of what employers need to do, there is some teeth to it as well.”

And onerous inspections, audits and steep fines aren’t the only way organizations could suffer from non-compliance.

“Everything in (AODA) is actually good for an organization to do. And for non-compliers, I’d also say that you’re essentially ceding the market to your competitors,” said Lepofsky, who is blind.

“There are 1.7-million people with disabilities in Ontario, there’s a billion of us around the world — I don’t know anybody who can afford to cut them out of their customer base.”

Intimidating process?

Some employers may still be a bit intimidated by the AODA legislation, which has a lot of different deadlines and moving pieces, said Nikfarjam.

But it’s not as difficult as it may initially seem.

“A lot of employers are trying to sift through and figure out ‘What applies to me? What applies to my company? How can I go about doing that?’ Because seeing AODA initially, it may seem a bit of a daunting task. But I think employers are now seeing that there are strategies,” she said.

“What I see is actually an encouraging number of employers actually taking this seriously... employers have gotten the message that they need to abide by this, it’s just a matter now of taking that and putting it into practice.”

Putting the AODA standards in place can also help widen your pool of talent — not just your customer pool, said Lepofsky.

“Providing barrier-free customer service will have the side benefit of also helping stimulate accessibility in the workplace. And that’s good for any organization that wants to have a broader pool of potential employees.”

The legislation will also serve to help accommodate current employees who may not have a disability now — but might develop one later.

“I was sighted as a kid — I’m now totally blind. And most people who experience vision loss experience it as they get older, just as one example,” he said.

“They’d rather be in a workplace where when that change does happen, it’s better for them to be already equipped for it.”

Building code changes

AODA standards will help equip employers for those changes, as will additional accessibility changes to the Ontario Building Code that take effect Jan. 1, 2015, said Nikfarjam.

“It’s not just AODA itself — there’s also building code changes that are coming in recognition of what’s embedded in AODA.”

Some employers may still be worried about the effort or expense these changes may incur. But five years from now, the workplace is going to change dramatically anyway — so employers should start laying the groundwork today to avoid falling behind, said Lepofsky.

“The smart employer says, ‘I want to be ahead of the game.’”


COMPLIANCE

Key dates for AODA standards

AODA is made up of separate parts, or standards, that are currently being phased in. The standards come into effect on different dates, depending on the size of a business and whether it is in the public, private or not-for-profit sector.

The goal is to make Ontario fully accessible by 2025.

Customer Service Standard: Came into effect Jan. 1, 2012, for all private sector employers with one or more employees. Employers with more than 20 employees had to submit an accommodation plan to the government by Dec. 31, 2012.

Integrated Accessibility Standards Regulations (IASR): Deadlines for private and non-profit organizations will begin in 2014 and 2015, depending on the size of the organization. The IASR set out special requirements for four standards: employment, information and communications, transportation and design of public spaces. There are also general requirements that apply to all four.

Ontario Building Code changes: Will take effect beginning Jan. 1, 2015.

Source: Ontario Ministry of Economic Trade, Development and Employment

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