Ontario rules cover recruitment, performance management
Less than three months away, the next deadline under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) looms large. And it shouldn’t be taken lightly by employers. The employment standards piece features 11 obligations, including recruitment, performance management and return to work programs.
It’s really quite an involved standard, said Doug MacLeod, principal of MacLeod Law Firm in Toronto.
“This really is going to permeate the hiring and HR process at most employers with 50 (employees) or more, and it’s going to require, in many cases, numerous changes and, more likely, new policies as opposed to revised policies or additions to existing policies.”
But there’s still time for employers to comply by the Jan. 1, 2016, deadline, he said.
“Once employers are aware of the obligations, they can quickly go through their HR processes and figure out where things need to be, where the additions need to be plugged in.”
The employment standards part of AODA is really about policy and communication, according to Cynthia Ingram, head of the employment and labour group at Keyser Mason Ball in Toronto.
“Communication being the real key — communication is one of the pivot points in any employment relationship and I see the 11 main obligations that are coming out... all deal with communications.”
Overall, companies are substantively prepared for AODA in that most of the concepts involved are very similar to concepts and requirements under the human rights code, said Holly Reid, a partner at Blakes in Toronto.
“Where I think there’s still work to do is ensuring that employers have revised their documentation to meet the specific requirements of AODA, so it’s more about process than substance.”
By 2016, employers with 50 employees or more will be required to notify both employees and the public about the availability of accommodation for job applicants with disabilities in the recruitment processes. They must also notify applicants who are selected to participate in an assessment or selection process that accommodations are available upon request “in relation to the materials or processes to be used,” such as an email interview for a deaf candidate.
If a selected applicant requests accommodation, the employer must consult with the applicant to arrange for suitable accommodation. And in making offers of employment, employers must notify successful applicants of the policies for accommodating employees with disabilities.
To an extent, some employers may be a little bit scared by this one, said Ingram.
“You might have some employers who look at that and say, ‘Why do I need to bring this to attention until they’re actually hired and they’re my employee? What obligation should I have to them when I’m only just in the recruiting or in the job posting phase?’… that’s new and I think you’re going to see a significant change in job postings and the phraseology.”
When it comes to notifying potential employees of accommodations, it could be on the company’s website or people could be told over the phone, said MacLeod.
“(AODA) doesn’t specifically say it has to go on the job ad, although that’s one obvious way to comply with the law and I think many employers will do that,” he said. “The legislation is pretty flexible in terms of how you inform people — you can tell them verbally, you can put it in an email or in a letter or on the letter confirming the interview.”
In complying, there may be fears of discrimination on the employers’ side as they think, “Oh my goodness, is this going to open me up to liability if I turn them down?” said Ingram, adding it’s all about documentation.
“Employers have got to really pick up their game on documentation… even on the temp agency side to the extent that (if) you’ve got a recruiter or a temp agency who’s doing it, you’ve really got to be diligent with your contractors as well, and your suppliers, and not take it for granted that they may be doing things (right)… you’re going to want to take a look at your own contracts and see that you’ve got the safeguards in there that you’re satisfied they’re doing what they’re supposed to.”
AODA doesn’t change the requirements employers already have under the human rights code to accommodate employees and job applicants with disabilities, but it does require employers to be more rigorous in how they document the accommodations and how they notify job applicants about the availability of accommodations, said Reid.
“What we’ll see is employers having to take a look at their recruitment and new hire documents and policies and perhaps revise them to reflect specifically that job applicants have the right to accommodation, if required.”
As for risks around discrimination complaints, those already exist, she said.
“But the fact that there’s more accessibility and accommodation issues that will be more highlighted to job applicants may lead to a rise in complaints under human rights, that’s certainly a possibility.”
Employers will also have to develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities. These plans should include:
• how an employee participates in the development of her plan
• how an employee can ask for a representative from her bargaining agent or workplace to participate in the development of the accommodation plan
• how an employer can request assistance from an outside expert
• how an employer will protect the employee’s privacy
• how the employer will tell an employee his accommodation plan has not been accepted.
It’s going to take some time for employers to figure out all the aspects of the plan and what needs to go into it, said MacLeod, adding “you have to provide workplace emergency response information in an individualized manner for certain people with disabilities, so that’s another obligation, but that should be included in the individual accommodation plan.”
Return to work
As part of AODA, employers must develop and have in place a return-to-work process for employees who have been absent from work due to a disability and require accommodations to return to work. The process should be documented and outline the steps the employer will take, using individual accommodation plans.
The more substantive change employers are going to face will be making sure they have an accommodation policy and return-to-work policy that includes specific, prescribed elements in the regulation, said Reid.
“(This) will require employers… to review and likely revise any current accommodation and return-to-work policies they have to ensure that they’re compliant because most of the accommodation and return-to-work policies I’ve seen in my practice, they don’t necessarily include all of the prescribed elements that are in the regulation. So there will be, at a minimum, some tweaking of the policies required.”
While large employers have had accommodations on the radar for a long time, smaller employers that rarely face accommodation requests are going to have to come up with new processes, instead of dealing with this on a case-by-case basis, said MacLeod.
“Most disabilities can be accommodated pretty simply and pretty cost-effectively, and that’s the reality in the world of small business. But now if you’ve got 50 or more employees, that’s not good enough — you have to have a formal process in place to deal with all of these scenarios.”
Performance management, career development
On the performance management piece, employers must take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans, according to AODA.
But it’s difficult to know exactly what “take into account” means, said Reid.
“At a minimum, I think it requires employers to be more aware of accessibility issues and individual employees on accommodation plans when going through the performance management process. And that may require looking at the documents they use during those processes to determine whether accessibility or accommodation should be specifically referenced… A lot of it’s documentation and communication.”
Some of this goes back to what the human rights tribunal is pushing right now around the duty to inquire on the part of the employer, said Ingram.
“It’s not just as simple as saying, ‘You’re late every day’… ‘You’re not getting those reports done as quickly’ — it’s having meaningful conversations,” she said. “Performance management is about communication, it’s about fairness to the employee, making sure that they know what the expectations are, you’re telling them they’re not meeting them and you’re offering an opportunity to tell you why.”
A lot of employers and employees still equate performance management with the annual review as opposed to ongoing performance management, said Ingram.
“You see a lot of cases in particular that deal with discipline and terminations coming out of performance when, in fact, had you actually looked at the reason, the foundation of the performance issue, there may have been a disability there.”
AODA also obliges employers to take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans, when providing career development and advancement, such as additional responsibilities, promotions or raises.
“Those provisions are mostly about creating awareness for managers who make decisions relating to career development, to keep in mind that there may be certain individuals who have accommodation or accessibility needs,” said Reid.
That’s one of the more common sense obligations, said Ingram, and it goes back to the discrimination side as opposed to the accessibility side.
“If you’re going to offer career advancement, executive MBA programs, for example, why wouldn’t you offer them to everybody and if you are going to offer them, where are you offering them, are they accessible?”