Accommodating disabled workers

New Ontario legislation provides accessibility to disabled workers

People with disabilities have the right to equal treatment. This protection is guaranteed by human rights legislation in all Canadian jurisdictions and includes equal access to employment and the right to freedom from harassment in the workplace.

Under existing laws, employers have a duty to consider the needs of disabled persons. This means designing buildings, processes, programs and job responsibilities inclusively. If existing physical structures, systems or attitudes create barriers then they must be removed. Where it is impossible to remove barriers without undue hardship, special arrangements or “accommodation” must be made so the disabled can fully participate

But workers with disabilities continue to experience barriers in participating in society, including the workplace. Ontario alone has 1.9 million people with disabilities, a number which is expected to increase as the general population ages.

In an effort to further identify, remove and prevent barriers, the province enacted the Ontarians With Disabilities Act, 2001 (ODA), mandating various organizations to make additional efforts to improve opportunities for the disabled.

On Sept. 30, 2002, certain provisions of the ODA were proclaimed into force setting out specific obligations on the part of the province, municipalities and the broader public sector, including public transit organizations, school boards, hospitals, colleges and universities.

Key definitions

As the objective of the ODA is to remove barriers to persons with a disability, understanding the meanings of these terms is essential.

Under the ODA, a disability is:

•any degree of physical disability, infirmity, malformation or disfigurement caused by bodily injury, birth defect or illness. This includes, for example: diabetes mellitus; epilepsy; brain injury; paralysis; amputation; lack of physical co-ordination; blindness or visual impediment; deafness or hearing impediment; muteness or speech impediment; physical reliance on a guide dog or other animal or on a wheelchair or other remedial device;

•mental impairment, disorder or a developmental or learning disability; and

•an injury or disability for which benefits were claimed or received under workers' compensation legislation.

A barrier is anything that stops a person with a disability from fully taking part in society including:

•physical barriers;

•architectural barriers;

•information or communications barriers, attitudinal barriers, technological barriers; and

•barriers created by policies or practices.

Examples include a lack of elevators in a building, assumptions that persons with disabilities cannot perform a certain tasks, failure to offer different ways to complete a task or to complete the essential elements of a job.

Government responsibilities

The ODA requires the government of Ontario to:

•develop barrier-free design guidelines for buildings the government buys, leases, builds or renovates;

•consider the accessibility of equipment, supplies or services the government is buying for itself, its employees or the public;

•accommodate the accessibility needs of government employees and those taking part in the selection process for employment;

•provide training to managers and supervisors regarding the ODA and the government's obligations regarding accessibility and employment; and

•develop and publish annual accessibility plans for each ministry considering barriers to people with disabilities and ways to prevent or remove them.

Responsibilities of other organizations

Municipalities, public transportation providers, hospitals, school boards, colleges and universities are required to establish plans which must include:

•a report on the measures the organization has taken to identify, remove and prevent barriers to the disabled;

•the measures in place to ensure the organization assesses its proposals for bylaws, policies, programs, practices and services to determine their effect on accessibility; and

•a description of the organization’s process for reviewing its practices and the measures the organization intends to take in the coming year to identify, remove and prevent barriers.

Guidelines and enforcement

Accessibility plans are to be developed annually and will be accessible to the public. The deadline for the first accessibility plans is Sept. 30, 2003.

Newly created bodies, the Accessibility Directorate and the Accessibility Advisory Council, will assist in providing resources and implementing regulations to provide guidance to organizations in the establishment of accessibility plans.

The ODA provides for offences and fines of up to $50,000 for failure to meet certain requirements. In addition to direct fines for offences, the ODA requires the provincial and municipal governments to consider accessibility when purchasing goods and services or when implementing government-funded capital programs.

Impact on the private sector

Even though the legislation is not specifically directed at the private sector, employers will be impacted by the ODA.

The provincial government and all municipalities are required to consider accessibility in choosing which goods or services to purchase. This has the potential to affect many companies that contract with the government and will provide an incentive to implement accessibility plans compatible with the ODA. The ODA creates additional municipal powers which may, in turn, affect the private sector. It gives municipalities the power to require businesses to be accessible to the disabled as a prerequisite to obtain, hold or renew a license. New Municipal Accessibility Advisory Committees have the power to review draft site plans and drawings of proposed subdivisions.

The ODA also includes regulation-making authority that allows the lieutenant-governor in council to permit the adoption of accessibility standards and codes by reference to new organizations not currently covered by the legislation.

As a result all employers should review systems and practices to remove any improper barriers and take steps to accommodate disabled workers.

It is important to recognize the ODA supplements, but does not replace, existing human rights legislation. The legislation also imposes substantial obligations on, and incentives to, employers to create and maintain barrier-free workplaces.

Fairness in employment will occur when employers integrate equity and accessibility practices into their workplaces. This does not require a reduction in the quality of the job expected — just an elimination of improper barriers.

Joe Conforti is a partner at Goodmans LLP, an international business law firm. He practices primarily in the field of human resources management and other workplace issues. He can be reached at [email protected] or at (416) 597-4177.

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