New deadline for AODA compliance looms on horizon

Another deadline for employers in Ontario is fast approaching when it comes to complying with the Accessibility for Ontarians with Disabilities Act (AODA).

And while the new rules have been rolling out for a few years now, it’s easy for HR to let them slip by, says David Fanjoy, an associate at McMillan in Toronto.

“There is still a lot of lack of awareness about the AODA and who it applies to. So I think it's a good opportunity for all employers to revisit their obligations under that and then determine what those obligations are, including developing policies and then filling out the compliance report.”

It’s the diversified employers who may find compliance most challenging, he says, such as those with different physical spaces or different services.

“That’s where going through this process is a bit more time-consuming and detailed, as opposed to the one location office or retail front where you can really look at the four walls to figure out what needs to be done,” says Fanjoy. “Luckily, those are generally larger employers who will have dedicated HR or other individuals to tackle this.”

At this point, most employers are in pretty good shape, says Dave Bushuev, an associate at Baker & McKenzie in Toronto; however, these deadlines may “go under the radar,” he says.

“Employers don't often remember they have to do it again, every three years; because three years is a long time, a lot of people in HR tend to forget about these reporting requirements. So there tends to be a bit of a frenzy in December.”

Accessibility compliance reports required

Businesses and not-for-profit organizations with 20 or more employees in Ontario, as well as certain public sector organizations, have until Dec. 31, 2023 to file an updated accessibility compliance report.

This is an online, self-reporting mechanism that tells the government whether you are complying with the AODA and the Integrated Accessibility Standards Regulation (IASR).  It asks questions about several areas, which vary depending on what organization category it falls into (such as business or non-profit or public sector).

The main areas could include questions about:

• creating and implementing written policies on how to achieve accessibility by meeting all applicable accessibility requirements in the IASR
• establishing and implementing a multi-year accessibility plan
• providing appropriate training on the AODA and the Human Rights Code as it pertains to people with disabilities
• having a website that confirms to World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0 Level AA

Written policies on accessibility

The policies should include a statement of commitment and outline rules for achieving accessibility goals. The policies need to be tailored to each individual employer, says Fanjoy, so figuring out exactly where the accessibility obligations are is usually the best starting point.

“We do get a lot of calls from clients who think that they may have to rework their office space to meet some accessibility requirements, which is true in some cases, but a lot of time, if those areas are not open to the public, then the requirements either don't exist or are different.

“So that's something that can be quite tricky, I think, for employers is determining which of the accessibility standards apply to them and which apply to parts of their business as well.”

The government also provides useful templates online, says Bushuev, with descriptions of the process and how organizations should go about filling or preparing a policy and AODA policy

“For the most part, organizations could do most of the stuff themselves. I do always recommend that they speak to counsel either in house or external just to have it reviewed; but for the most part, this is a thing businesses could do themselves.”

Multi-year accessibility plan

This plan is going to be pretty employer-specific, says Bushuev, and again there are a lot of resources on Ministry of Labour sites and other related government sites on AODA.

“It's just about having a plan to ensure that companies are meeting their requirements under AODA. And improving their accessibility even when there's no strict requirements,” he says.

This plan needs to be tailored not only to the organization, but to the compliance report, says Fanjoy, because of where a company is at in terms of their accessibility journey.

“For some organizations, it might be entirely focused on meeting those accessible website requirements; it might be ensuring that customer service online or help bots, or different things like that are provided in an accessible way. So it really is going to be different for each business in terms of the goods and services they're providing to the public.”

And there are consultants who can help with this, he says.

“We have seen a lot of HR people [where] this is being put on their plate for the first time. And it can be quite daunting, but there are lots of resources out there to help.”

Training requirements with AODA

For the upcoming deadline, employers in Ontario must provide an update on their training efforts around AODA. All employees, regardless of employment status or position, must receive accessibility training that covers the accessibility customer service standard, work-related accessibility topics, the Ontario Human Rights Code, and your business accessibility policy.

Overall, it's about making sure that employees know their obligations under AODA, and how to deal with and assist people who may have a disability and have trouble accessing services, says Bushuev.

“With the recent turmoil we've had with the economy, [there’s been] a lot of people switching jobs, a lot of new hires, a lot of terminations. I suspect this year may be challenging for some employers, just in terms of ensuring that all the necessary employees are trained appropriately.”

As of Sept. 1, 2022. hundreds of organizations in British Columbia were required to meet new rules related to the passage of the Accessible British Columbia Act.

Online considerations for AODA compliance

When it come to online compliance, that’s one area where some employers struggle in ensuring that websites meet those accessibility requirements, says Fanjoy, “particularly when there are older websites or web products that are captured by the AODA requirements.

“Determining exactly what needs to be WCAG compliant can be quite tricky. So we find that that online portion is probably the area that employers need to pay the most attention to, as well as developing the written policies that need to be in place.”

The mandatory requirement for the online compliance is for public-facing sites, says Bushuev, “but if an employee requests an accessible format – for example, if they have vision problems and need larger fonts for internal websites that contain policies – the employer does have to provide that.”

Monetary fines for non-compliance

The changing rules should not be taken lightly. Organizations that fail to meet their obligations in a timely manner could face monetary fines imposed under the IASR in the amount of $100,000 for a corporation/organization and $50,000 for directors and officers of a corporation or organization.

There’s actually been “a slight uptick” in enforcement from the ministry, mostly in form of audits, says Fanjoy.

“We are helping a couple clients work through AODA audits at the moment. And they're not too difficult or problematic, the ministry is really focused on working with employers to help them achieve compliance. So we're not seeing, so far anyway, monetary penalties or fines in the first instance.”

If an audit comes back with a number of deficiencies, the employer will typically be given an opportunity to correct those, and to lay out a plan to work with the officer who's been assigned to their case on that plan, he says.

“From there, if compliance still isn't met, that's when fines and other penalties can come into play, but the ministry is focused on a pretty cooperative approach.”

Bushuev says he also has not yet seen any fines.

“I suspect the government, if an employer is late with reporting, they'll be more inclined to give them a gentle nudge or a warning before imposing heavy fines. But you never know. I mean, that can change pretty quickly.”