Chair’s letter to the minister

January 22, 2019

The Honourable Raymond Cho
Ministry for Seniors and Accessibility
Frost Building South
6th Floor
7 Queen’s Park Crescent
Toronto, Ontario
M7A 1Y7

Dear Minister,

The Employment Standards Development Committee has completed our legislative review of the employment standard. As chair and on behalf of the committee, I am pleased to submit the final recommendations report for the proposed accessibility standard for your consideration.

In meeting the provisions of the legislative review, as set out in the Accessibility for Ontarians with Disabilities Act, we re-examined the long-term objective of the employment standards and each of the requirements. Our review included all of the Standard’s sections, the focus areas identified in the terms of reference, and additional items raised by committee members.

As you requested, we considered how to make it easier for businesses and the public sector to achieve accessibility in all of the recommendations.

The report includes the eight recommendations developed by the committee, and a new long-term objective. We did not make any changes to the initial recommendations as our focus was on reducing confusion that may exist around requirements. While the focus is on employees with disabilities, we believe it is essential that modern day workplaces become more inclusive and accessible in their design.

Our committee had extensive discussions in reviewing each of the standards. We had meaningful and lengthy debates on recommendations for the definition of the term “employee”, and the removal of the word “individualized” from emergency response information.

We also had substantial discussions about the impact of technology and changing workplaces on persons with disabilities. Members also considered emerging issues such as the changing nature of relationships between employees and employers and the emerging sharing and gig economies.

While we focused on the review of the employment standards, we did discuss how each of the standards under the Integrated Accessibility Standards Regulation are interrelated and work together to remove barriers in the workplace. Members highlighted the importance of employers embedding accessibility in the physical and technological design of the workplace.

We discussed the need for greater education and outreach to help address attitudinal barriers throughout the employment life cycle, including bias and ableism in recruitment and employment practices. We identified how it is hard to regulate culture change in the workplace, but that education and awareness may help support a culture shift towards an inclusive workplace. While these conversations helped inform our final decisions and report, they did not result in recommendations.

We considered all public feedback and stakeholder presentations in finalizing our recommendations. We have reflected this in the report. We thank the individuals, and organizations who took the time to provide feedback on the initial recommendations report.

We are grateful to have had the opportunity to contribute to making Ontario more accessible. Employment is an important part of daily living for people with disabilities, and a strong workforce will ensure that Ontario becomes even more competitive.

It has been an honour to chair this committee and work alongside such enthusiastic and knowledgeable members dedicated to accessibility in all aspects of the employment life cycle.

We look forward to the minister’s response on these final recommendations.

Sincerely,
Laura Glithero
Chair of Employment Standards Development Committee

Background

The purpose of the Accessibility for Ontarians with Disabilities Act, 2005 (the act) is to achieve an accessible Ontario by 2025, through the development, implementation and enforcement of accessibility standards that apply to the public, private and not-for-profit sectors.

The initial accessible Employment Standards Development Committee (committee), whose work informed the creation of the accessible employment standards, which first came into effect July 1, 2011, established the standards’ long-term objective: to set out policies, procedures and requirements for the identification, removal and prevention of barriers across all stages of the employment life cycle for persons with disabilities.

Implementation of the standard was staggered based on size and type of organization with the last sector, small organizations (1 to 49 employees), and coming into effect January 1st, 2017. The act requires a review of accessibility standards five years after the standards become law and every five years subsequently to determine whether the standards are working as intended and to allow for adjustments to be made as required.

Under the act, the committee must review a standard as follows:

  • re-examine the long-term objectives of the standard;
  • if required, revise the measures, policies, practices, and requirements to be implemented on or before January 1, 2025, and the timeframe for their implementation;
  • develop another proposed standard containing modifications or additions that the committee deems advisable for public comment; and
  • make such changes it considers advisable to the proposed accessibility standard based on comments received and make recommendations to the minister.

In March of 2017, the previous Minster Responsible for Accessibility invited members of the disability community and the sectors of obligated organizations (broader public sector, private sector) to undertake a legislated review of the accessible employment standards. In addition, non-voting members from the Ministry for Seniors and Accessibility and its partner ministry, the Ministry of Labour, also sit on the committee.

The minister wrote to the committee chair to provide terms of reference and a mandate letter for the review. The committee was asked to focus the review on requirements for sectors that have been in effect for more than 24 months, as well as to identify any gaps that may remain in the standards.

On June 29th, 2018, the first Minister for Seniors and Accessibility was appointed. In a letter addressed to the chair, the minister asked that the committee complete the review and explore and identify how to make it easier for businesses and the public sector to achieve accessibility for people with disabilities.

The committee was also asked to consider the ministry’s public outreach work on accessible employment. The work is engaging employers as active partners in breaking down employment barriers for people with disabilities and promoting inclusive workplaces.

As required under the act, the committee is submitting its report on the final proposed employment standards. The recommendations were made following six meetings and the submission of an initial recommendations report. The committee’s initial recommendations were posted on March 20th, 2017. A public feedback period was open for 45 days, from March 20th to May 7th, with a link to a survey posted on Ontario.ca.

A total of 530 respondents answered the survey. While the majority of feedback was received through the online survey, some individuals and organizations chose to provide feedback through written submissions provided to either the chair of the committee or via the public input email address provided on the website.

Eight written submissions were received with four from organizations representing persons with disabilities, three from municipalities and one from an individual.

The committee considered all feedback and had substantial discussion and debate before finalizing their recommendations. The committee also received two presentations. One from the AODA Alliance and another from the ARCH Disability Law Centre.

The committee believed the presentations raised important questions that resulted meaningful discussion and deliberation. The committee did not amend any recommendations from their initial report however they requested that content be added to the report to reflect public feedback and presentations to the committee.

The enclosed report reflects the committee’s discussion and final recommendations.

Introduction: Summary of committee recommendations

This section of the report provides a quick reference to the recommendation made for each item of discussion including timelines for implementation. Detailed explanations of how the committee arrived at each recommendation, including narrative, are contained at the end of the document, in the section titled “final recommendations”. The title of each section here contains a link to the full recommendation providing further detail.

The committee recognizes the importance and priority of reducing barriers and accordingly the timing of each regulatory recommendation should be implemented considering the timing of other changes to the Integrated Accessibility Standards Regulation, impact on the disability community, business community and obligated organizations. The recommendations below should be read with the above considerations in mind.

Long-term objective

The act requires standards development committees to establish long-term objectives to inform the development of accessibility standards. During a review the committee is required to re-examine the long-term accessibility objectives. Long-term objectives do not appear in Standards, they may be presented in guidelines and communications materials.

Long-term objectives are the intended outcome of the Standards. The establishment of long-term objectives at the beginning of the standards development process and during the review process helps guide and inform standards development committees in determining which accessibility requirements will help achieve the identified goals.

The initial long-term objective of the accessible employment standards was:

The long-term objective of this initial proposed employment accessibility standard is to set out policies, procedures and requirements for the identification, removal and prevention of barriers across all stages of the employment life cycle for persons with disabilities.

The committee recommends a new long-term objective:

The long-term objective of the accessible employment standards is to identify, remove and prevent barriers across all stages of the employment life cycle for persons with disabilities by 2025.

Committee members believe the new objective more clearly captures the intended outcome of the accessible employment standards.

Improved clarity with the Ontario Human Rights Code

Recommendation 1: improve and strengthen guidelines

Improved clarity between the Accessibility for Ontarians with Disabilities Act’s accessible Employment standards and the Ontario Human Rights Code’s duty to accommodate is required.

The committee recommends the government and the Ontario Human Rights Commission (OHRC) review and strengthen guidelines and clarification for employers with regard to the differences between Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act’s accessible employment standards.

Note: By “review,” the committee intends the government and the OHRC to explore the causes of confusion regarding the relationship between the Accessibility for Ontarians with Disabilities Act and the Ontario Human Rights Code as a first step.

Timing:

Completed within two years of the government accepting recommendation.

Scope and interpretation

Recommendation 2: scope and interpretation (section 20)

The committee believes a gap exists because a definition of “employee” is not included in the Accessibility for Ontarians with Disabilities Act and Integrated Accessibility Standards Regulation. The committee recommends a definition of “employee” should be added to the Accessibility for Ontarians with Disabilities Act or Integrated Accessibility Standards Regulation and be consistently applied throughout. This definition should be consistent with the intent and purpose of the Accessibility for Ontarians with Disabilities Act and should be based on the employer–employee relationship.

Note: The committee intends that any definition of employee added to the Accessibility for Ontarians with Disabilities Act or Integrated Accessibility Standards Regulation align with and consider existing employment legislation.

Timing:

The committee recommends the definition should be implemented 12 months from effective date.

Recruitment, assessment and selection

Recommendation 3: recruitment, general (section 22)

In order to fully inform job applicants, the committee recommends section 22, notice of availability of accommodations throughout recruitment by employers, should be expanded to include notice of availability of accommodation during employment.

The policy intent of this recommendation is to amend section 22 notice, and not to expand other requirements of the accessible employment standards. The rationale for the recommendation is that this provides applicants better awareness of their right to accommodation during the employment lifecycle. The requirement to accommodate throughout employment under the Ontario Human Rights Code may currently not be clear.

Timing:

The change of expanded notice should be implemented 12 months from effective date.

The committee recognizes the impact this change may have on the disability community, and the impact it may have on employers who may need to review their practices to ensure compliance with this existing obligation.

Recommendation 4: recruitment, assessment or selection process (section 23)

The committee recommends guidelines and best practices should be developed on how to make the recruitment, assessment and selection processes and materials inclusive by design.

Some employers may need additional resources (for example, how to have conversations with candidates/employees during the recruitment, assessment and selection processes). government should provide the materials.

Timing:

Completed within two years of the government accepting recommendation.

Recommendation 5: notice to successful applicants

Too often employers and candidates do not know when or how to have open and successful conversations to accommodate an individual’s needs.

In order to address this gap, the committee recommends the government should review, strengthen and better promote guidelines and best practices to clarify requirements under sections 23 and 24.

Timing:

Completed within two years of the government accepting recommendation.

Workplace emergency response information

Recommendation 6: emergency response information (Section 27)

The desired outcome of section 27 is to ensure accessible emergency response information is available to all employees with disabilities in accessible formats, upon request.

Section 27 makes references to “individualized” emergency response information. The committee believes the use of the word “individualized” may result in obligated organizations unnecessarily developing individualized emergency response plans. The committee recommends the word “individualized” be removed from section 27.

Questions of individualized emergency plans and emergency accommodations needs are best addressed as part of Section 28 requirements for individualized accommodation plans.

Timing:

The change should be implemented 12 months from effective date.

Individualized accommodation plans

Recommendation 7: centralized portal for individual accommodation plans (section 28)

The tools and resources that exist for individual accommodation plans are not easy to find and use outdated language. The committee recommends the government should be responsible for a centralized portal for updated resources for individualized accommodation plan processes.

Note: The intent of the recommendation is that the tools and resources align with the OHRC’s policies on the procedural duty to accommodate. In addition, the OHRC should be consulted to ensure harmonization.

Timing:

Completed within two years of the government accepting recommendation.

Return to work

Recommendation 8: monitoring of return to work processes (section 29)

The committee believes the desired outcome of this section is that employers create processes that better recognize the needs of persons returning to work. The return to work processes under other legislation are constantly evolving, so more information, research and public feedback may be required. The government should monitor the implementation of section 29, including any gaps and challenges to inform the next review of the accessible employment standards.

Timing:

Monitoring to begin immediately upon the government accepting recommendation.

Overview: final recommendation

Barriers to accessible employment can significantly affect the lives of people with disabilities, as employment is an integral factor to financial independence, personal satisfaction, involvement in the community, and more broadly, the economy. The objective of the accessible employment standards, established in 2011 as part of the Integrated Accessibility Standards Regulation (IASR) under the Accessibility for Ontarians with Disabilities Act, 2005 (the act) is to provide for accessibility across all stages of the employment life cycle, including recruitment, workplace accommodation, performance management, career development and advancement and return-to-work processes.

The original Employment Committee, formed in 2007, whose work informed the creation of the accessible employment standards, established its long-term objective to set out policies, procedures and requirements for the identification, removal and prevention of barriers across all stages of the employment life cycle for persons with disabilities.

As prescribed in legislation, the minister wrote to the committee chair to undertake specific work during the accessible employment standards review outlined in a mandate letter. This included:

  • re-examine the long-term objectives of the Standards
  • if required, revise the measures, policies, practices and requirements to be implemented on or before January 1, 2025, and the timeframe for their implementation
  • develop another proposed accessibility Standards containing modifications or additions that the committee deems advisable for public comment
  • make such changes it considers advisable to the proposed accessibility
  • Standards based on comments received and make recommendations for consideration

Under this framework, the committee was asked that the review focus on requirements for sectors that were in effect for more than 24 months, as well as to identify any gaps that may remain in the standards, and to consider all possible solutions and tactics, including non-regulatory approaches.

In a letter dated October 5th, 2018, the Minister for Seniors and Accessibility also asked that the committee explore and identify how to make it easier for businesses and the public sector to achieve accessibility for people with disabilities.

The review kicked off during the last year of implementation of the Standard, effective for small organizations January 1st, 2017. Potential focus areas for the review were based on pre-consultation feedback and included:

  • clarity of requirements for individual accommodation plans
  • desire for clear guidance materials
  • disclosure of disability as activation for support and requirements to apply

Each topic covered by the committee included meaningful discussions benefitting from the diverse viewpoints and knowledge that the members and subject matter experts brought with them. In an effort to ensure a broad range of input, members worked first to identify themes, gaps and relevant issues associated with each topic under review. After each meeting members sought feedback from their respective communities and networks to bring back and share with the committee at the following meeting. Input from committee networks and experts informed voting on recommended changes.

The committee recognized early in the process that:

  • full implementation of the standard for organizations was as recent as January 2017 for small organizations.
  • the accessible employment standards are relatively new and a number of requirements have only just been implemented. In these cases, the effectiveness of the requirement in question was difficult to measure due to a lack of evidence based on early implementation of the accessible employment standards.

The committee acknowledged that great strides have taken place in achieving accessible employment in Ontario, but there is still work to do. The committee’s discussions got to the core of how best to ensure persons with disabilities have accessible recruitment and employment experiences.

The recommendations voted on by the committee included proposed regulatory changes and non-regulatory solutions. In some cases, the committee decided to recommend no changes at this time, but provided commentary on the issue in question for future consideration.

Final recommendations

The accessible employment standards apply to paid employment, including but not limited to, full-time, part-time, apprenticeships and seasonal employment. The Standards set out requirements to help obligated organizations (for example, government, business and not-for-profit) remove employment barriers to create workplaces that are accessible and inclusive, allowing employees to reach their full potential. Since 2011, obligated organizations have been working to implement the requirements designed to achieve the long-term objective of the accessible employment standards.

The following is the accessible employment standards development committee’s final advice and recommendations on the proposed accessible employment standards, itemized and organized by focus area.

Improved clarity with the Ontario Human Rights Code

Recommendation 1: improve and strengthen guidelines (accessible employment standards and the Ontario Human Rights Code)

The committee recognized clarity between the accessible employment standards and the Ontario Human Rights Code as a priority issue and chose to make it the first recommendation. While the focus of the committee’s discussion was on employment, members acknowledged that a requirement for clarity cuts across all of the accessibility standards.

The Ontario Human Rights Code provides and protects for equal rights and opportunities, and freedom from discrimination for all persons, including disability. The Code protects rights in five social areas: accommodation (housing); contracts; employment; goods, services and facilities; and membership in unions, trade or professional associations.

In contrast, the accessible employment standards is a regulation that obligates employers to meet certain requirements for the purpose of ensuring accessibility throughout the employment life cycle. Where the Ontario Human Rights Code and other employment laws come into conflict, the Code will prevail.

The committee received a presentation from the Ontario Human Rights Commission during committee orientation and also received a presentation clarifying the differences between the Ontario Human Rights Code and the accessible employment standards.

The committee engaged in discussions about the Ontario Human Rights Code (the Code) and its relationship to the accessible employment standards, and committee members sought feedback from their networks. During its fifth meeting, the committee engaged in a dialogue with a representative from the Ontario Human Rights Commission. committee members asked questions regarding outreach, education, training and the relationship between the accessible employment standards and the Ontario Human Rights Code. Committee members and the OHRC representative discussed confusion from the public regarding the relationship between the Code and the accessible employment standards. committee members also raised questions about the Human Rights Tribunal of Ontario process.

This Tribunal is tasked with hearing complaints under the Ontario Human Rights Code. The Tribunal has the power to grant damages and specific performance to remedy discriminatory acts.

Disability is the most cited ground of discrimination in complaints to the Tribunal, making up 50 per cent of all complaints. Employment is the social area most cited by complaints, accounting for 70 per cent of all cited social areas as described in Social Justice Tribunal Ontario Annual Report. Social Justice Tribunals Ontario (SJTO) is a cluster of eight adjudicative tribunals which includes the Human Rights Tribunal of Ontario.

Throughout their discussion, committee members acknowledged that the Integrated Accessibility Standards Regulation and the accessible employment standards do not replace or affect legal rights or obligations that arise under the Ontario Human Rights Code and other laws relating to the accommodation of people with disabilities. The committee believed the Human Rights Code seeks to guarantee an outcome (rights, employee accommodation) while the accessible employment standards require processes and procedures to assist in achieving that outcome.

The committee recognized that the Code or other applicable legislation may require additional accommodation measures that go beyond or are different from the standards established by the regulations of the Accessibility for Ontarians with Disabilities Act.

In their dialogue the committee concluded there is ultimately still confusion for organizations when they are considering their obligations under the accessible employment standards and the Ontario Human Rights Code.

The committee expressed concern about frontline managers understanding the difference between the two laws or small organizations where one person may have responsibility for the Code, the accessible employment standards and all other employment law compliance. The committee expressed a desire in having employers understand how the accessible employment standards complement the Ontario Human Rights Code.

The committee discussed the importance of clarity for employers interpreting the two laws. The committee also discussed feedback from their networks. The tendency of networks (employers) was to be very familiar with the Code while not necessarily as familiar with their accessible employment standards obligations.

Scope and interpretation

Recommendation 2: scope and interpretation (section 20)

The accessible employment standards establishes scope and application in section 20. The Standards apply to employees and does not apply to volunteers or other non-paid individuals. The term “employee” is not defined in the Accessibility for Ontarians with Disabilities Act or employment standards. The committee considered both the definition of the term “employee” in the Standards and the application of the Standards to volunteers.

The definition of “employee” in the employment standards

The term “employee” is not defined in the act or in the accessible employment standards. The committee considered whether this is a potential gap. Having one or more employees is the threshold which determines an organization’s requirement to comply with the act and its standards. It is not always clear to organizations what the term “employee” means in the context of the act, and the accessible employment standards. The committee received examples and discussed the definition of employee in other similar employment legislation. The Ministry of Labour provided examples of the definition of employees from employment and occupational health and safety legislation.

The committee recommends defining the term “employee” in the act or accessible employment standards as this may provide greater clarity for organizations. Employee can be a term that may or may not encompass roles such as unpaid interns or contractors. The committee also considered the need for the definition to be consistently applied throughout the Integrated Accessibility Standards Regulation.

Evolving work relationships and technology

The committee acknowledged that the term “employee” is an evolving concept as employer-employee relationships become more diverse and complex. The gig economy was identified as an example.

Application of the standard to volunteers

The committee considered broadening the scope and application of the accessible employment standards to volunteers. A vote was held but the motion did not pass. A significant discussion was held on this point.

The committee heard evidence that 13.3 million people — accounting for 47% of Canadians aged 15 and over — did volunteer work in 2010. Volunteers devoted almost 2.07 billion hours to their volunteer activities, a volume of work that is equivalent to just under 1.1 million full-time jobsfootnote 1. The committee also considered how volunteers may require accommodation and training in their duties.

The committee raised concerns about the practicality of mirroring accessible employment standards requirements for volunteers when volunteer relationships do not always mirror employment relationships.

The committee recognized the makeup of persons who volunteer is dynamic and fluid with some volunteer relationships lasting only a few hours (for example, volunteering in a parade). Training of volunteers was a central part of the discussion.

The committee voiced concern about adding regulatory burden to organizations (usually not for profit) that may rely on volunteer work. Committee members raised concerns about the implication of new training requirements for organizations that may have small staff but a very large number of volunteers. The committee also considered that the proposed accessible employment standards under the Accessibility for Manitobans Act do not cover volunteers or unpaid workers.

It was also brought to the attention of the committee that policy guidelines for the Integrated Accessibility Standards Regulation suggest that organizations may want to apply the accessible employment standards requirements to volunteers as a best practice. The Guide to the Integrated Accessibility Standards Regulation provides the following regarding application of the accessible employment standards to employees: The Employment Standard applies to paid employees. This includes, but is not limited to, full-time, part-time, paid apprenticeships and seasonal employment.

When considering public feedback, the committee continued to have substantial discussion on the inclusion of volunteers in the definition. The committee wanted to note that volunteer work is an important bridge for persons with disabilities before entering the paid workforce. The committee specifically highlighted how volunteer work and experiences are often critical in enabling persons with disabilities to move into occupations and that these opportunities are important part of the disability journey.

Recruitment, general

Recommendation 3: recruitment, general (section 22)

Section 22 of the accessible employment standards requires that every employer notify its employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes. Organizations are required to provide notice of availability of accommodations under the accessible employment standards at three phases (recruitment, selection, and notice to successful applicants). It is important to note employers have a duty to accommodate under the Ontario Human Rights Code.

The committee considered that including notice of accommodation in job advertisements specifically referring to the recruitment stage would lead applicants to believe accommodation may only be available at the recruitment stage.

Committee members remarked that applicants may feel discouraged in applying to positions if they believed accommodations are only available during recruitment. The committee discussed feedback from their networks and concluded that some persons with disabilities may not apply to jobs that do not give notice that accommodation is available throughout the entire employment relationship.

The committee also noted the importance of accessible notice and accessible job board websites. For example, the committee discussed inaccessible job ads and job application software. Committee members raised the potential of software having embedded algorithmic bias which discriminates against persons with disabilities. committee members recognized the importance of having these systems remove bias as they may scan out qualified candidates.

The committee suggested that the standards development committee which is tasked with developing the information and communications standards under the act consider this issue.

The committee believes that expanding the requirement to include the notice that accommodation is available throughout the employment experience would create a minimal burden to business while providing important awareness to job applicants – as the requirement to accommodate is already provided under the Ontario Human Rights Code.

Recruitment, assessment or selection process

Recommendation 4: recruitment, assessment or selection process (Section 23)

Section 23(1) of the accessible employment standards require that during a recruitment process, an employer shall notify job applicants, when they are individually 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.

Section 23(2) requires that if a selected applicant requests accommodation the employer shall consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicant’s accessibility needs due to disability.

When considering a recommendation, the committee discussed how disclosure of disability may affect the consultation process between applicant and employer. The committee recognized that some organizations and front line managers may not have the required training, comfort or familiarity to have productive conversations with applicants and/or employees with disabilities.

The committee noted the difficulty and potential discomfort for both candidates and employers in initiating discussions.

The intent of the committee’s recommendation is that guidance is provided to assist employers in designing accessible recruitment, assessment, and selection materials, as well as tools and processes to ensure accessibility from the beginning.

The committee did not choose to propose a regulatory recommendation to address this gap because the committee felt the issue primarily dealt with attitudinal bias that requires a broader cultural shift beyond regulation (for example, guidance, education and awareness).

Notice to successful applicants

Recommendation 5: Notice to successful applicants (section 23 and 24)

Section 24 of the accessible employment standards require every employer, when making offers of employment, to notify the successful applicant of its policies for accommodating employees with disabilities.

When reviewing section 24, the committee revisited the issue of disclosure in both section 23 and 24 jointly. The committee recognized that in order to receive accommodation a person with a disability may have to disclose this information to the employer themselves, particularly in the circumstances of disabilities that are not readily or easily identifiable. Disclosure and employer’s awareness of a need for accommodation is the trigger which brings about accommodation. Without disclosure employers may not be aware of the need to accommodate. On the other side of employee disclosure, committee members pointed out the fear of discrimination from employers when persons with disabilities disclose their need for accommodation. committee members recognized that some persons with disabilities may feel they will not be treated equally or discriminated against when disclosing their need.

The committee also discussed the desire of employers to avoid violating applicant rights under the Ontario Human Rights Code. The committee also acknowledged one of the challenges for persons with disabilities and organizations is that an applicant or employee may not know what accommodations they need in their work environment, or how to ask for them. The committee believed that guidance was needed for both employers and applicants/employees in having these conversations with employers. The committee believes current guidance focuses exclusively on employer obligations.

Workplace emergency response information

Recommendation 6: Workplace emergency response information (section 27)

Under section 27 of the accessible employment standards employers are required to provide individualized workplace emergency response information under the following conditions:

  • when the employee’s disability is such that the information is necessary
  • the employer is aware of the need for accommodation because of the employee’s disability

Employers shall provide the information required under this section as soon as practicable after the employer becomes aware of the need for accommodation due to the employee’s disability.

Before developing a recommendation for section 27 of the accessible employment standards, the committee requested to hear from a first responder organization, and/or experts with practical experience and knowledge in emergency situations.

The committee heard a presentation provided by a Deputy Fire Chief from the City of Toronto. The committee was informed about the role of firefighters and the requirements of fire safety plans under the Ontario Fire Code. The presenter explained that the role of firefighters is not to evacuate buildings but rather provide rescue services (when necessary) and to put out fires.

The presenter explained that fire safety plans vary greatly between buildings and depend on the age, nature of type of facility. The presenter also clarified that fire safety plans are the responsibility of the owner of the building. The definition of owner includes the registered owner but also anyone having care or control of any part of the property, so it may encompass tenants.

The presenter also provided that the best practice for fire safety plans is to keep a list of persons with disabilities (this is not required by the Fire Code) and to have a dedicated team to manage plans, particularly in situations where the owner or tenant has multiple buildings. The presenter also told the committee the Fire Code does not require individual plans for persons with disabilities.

The committee engaged in a dialogue with the presenter and continued discussion and questions. In their discussion the committee noted confusion between the term “information” and the term “plan”. Members also pointed out that emergencies go beyond fire and that should be considered.

The committee also viewed guidance material for section 27 (for example, sample workplace emergency information) and concluded the guidance material is likely to lead organizations and employers to create plans instead of information.

For example the committee considered individualized accommodation plans, specifically, section 28(3)(b) which states if required include individualized workplace emergency response information, as described in section 27. The committee considered the potential redundancy of organizations mistakenly creating individual plans instead of information under section 27. The committee expressed a desire for more clarity.

The committee also reviewed feedback from their networks that the requirement for individualized emergency response information may be onerous in multi-facility work arrangements where one individual may work in several offices or locations (for example hospitals, university campuses).

Despite this complexity, the committee felt safety was the highest priority and organizations must meet their obligated requirements under the accessible employment standards and safety standards regardless of their size or multiple work locations.

The committee continued to discuss compliance with the requirement and explained even with high compliance rates concerns remained about whether section 27 was achieving the intended outcome. Committee members believed more clarity was required in the accessible employment standards to achieve this outcome.

The committee had extensive discussions before reaching consensus on this recommendation. The committee carefully reflected on their recommendation and discussed how the current requirement may be causing confusion. One source of confusion committee members identified was varying interpretations leading to different expectations of plans. Committee members described their own experiences as implementers and as persons with disabilities. The Committee also considered the public feedback on this recommendation and noted again that safety was the highest priority in making this recommendation.

Other committee members noted that safety is regulated and enforced through different health and safety legislation. Overall, the committee felt emergency information and planning will continue to be an important issue with aging demographics and an increase of persons with disabilities in the workplace. As demographics change members acknowledged the changing workplace design will be an important part of emergency planning and safety. Inclusive design in workplaces may reduce the need for individualized emergency planning as the workplace is designed employees of all abilities.

The committee agreed that the inclusion of emergency information in the requirement for accommodation plans (section 28) may ensure a more comprehensive approach to addressing accommodation supports in the workplace.

Individualized accommodation plans

Recommendation 7: Centralized portal for individual accommodation plans (section 28)

Section 28 of the accessible employment standards requires employers, other than employers that are small organizations (as defined by the Integrated Accessibility Standards Regulation), to develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities.

Section 28(2) lays out the process for the development of a plan which must include the following elements:

  1. The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan.
  2. The means by which the employee is assessed on an individual basis.
  3. The manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to determine if and how accommodation can be achieved.
  4. The manner in which the employee can request the participation of a representative from their bargaining agent, where the employee is represented by a bargaining agent, or other representative from the workplace, where the employee is not represented by a bargaining agent, in the development of the accommodation plan.
  5. The steps taken to protect the privacy of the employee’s personal information.
  6. The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done.
  7. If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee.
  8. The means of providing the individual accommodation plan in a format that takes into account the employee’s accessibility needs due to disabilityThe manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan.

To start their discussion the committee reviewed the policy intent of section 28 which states

individual accommodation plans under the accessible employment standards are a formal way of recording and reviewing the workplace-related accommodations that an employer will provide to an employee with a disability. Accommodation plans are living documents. They are required to be reviewed and updated so that they remain effective and up-to-date.

The committee considered both the requirement for individualized accommodation plans and the elements of the plan. The committee also revisited their discussion under section 27 and emergency response information. More broadly, the committee noted the importance of recognizing connections between each requirement in the accessible employment standards and the elements of the individualized accommodation plan (for example, information regarding accessible formats). The committee acknowledged the individualized accommodation plan requires a robust and meaningful discussion between employer and employee about individual needs. The committee once again revisited the theme of disclosure as a trigger for accommodation. The committee continued to discuss the importance of organizations having a clear understanding of their obligations.

The committee reflected on whether the distinction between individualized accommodation plans and the duty to accommodate under the Ontario Human Rights Code is clear to employers. Based on their stakeholder feedback committee felt there may still be a lack of clarity for organizations in meeting their requirements under section 28.

In order to help understand implementation, the committee reviewed guidelines and resources that provided templates meant for organizations and employers. After discussion and reviewing materials, the committee expressed a desire for guidelines that were written in plain language, inclusive and up-to-date. The committee also discussed the value of up-to-date resources that can be found more easily than current materials. The committee believes best practices evolve frequently and resources should remain up-to-date and centralized to reflect this evolution.

When reflecting on public feedback to their initial recommendations the committee highlighted how clarity is needed for employees as well. Committee members stated when employees with disabilities are onboarded there is a substantial amount of paper work for them to consider. The employee may have little time or awareness about what potential resources may exist specifically for them. The committee believed a centralized portal of information would help alleviate this burden for employees as well.

The committee also considered combining other accessible employment standards requirements into individualized accommodation plans. Namely, the committee reflected on performance management, (s.30) career development/advancement (s.31) and redeployment (s.32). The committee concluded there is value in keeping these requirements separate. (See below for a discussion on sections 30, 31 and 32.)

Return to work process

Recommendation 8: Monitoring implementation of return to work processes (section 29)

Section 29 of the accessible employment standards requires every employer, other than small organizations, to develop and have in place a return to work process for its employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work.

Employers are also required to keep the process up-to-date, outline the steps the employer will take to facilitate the return of the employee and use documented individual accommodation plans as part of the process. Section 29(3) states The return to work process referenced in this section does not replace or override any other return to work process created by or under any other statute.

The committee considered the intent of the requirement. The intent of the requirement is that employers will have in place a documented process for supporting employees who return to work after being away for reasons related to their disabilities. If an individual’s illness or injury is covered by the return to work provisions of another piece of legislation, then the committee suggested that the other act’s return to work process should apply.

The committee discussed potential confusion and burden for employers, as obligated organizations may have to maintain and develop different processes or forms for different return to work situations. The committee discussed their stakeholder feedback and confidential stakeholder feedback the ministry had gathered. The committee recognized that most employers already have a return to work process in place and are familiar with other return to work legislation and related requirements and processes.

The committee considered that return to work processes under other legislation have key differences relating to insurance and compensation. The committee also recognized the upcoming work of organizations on making unified return to work documents.

Note for sections 30, 31 and 32

The committee did not provide regulatory recommendations for section 30, 31 and 32. However the committee had significant discussions on these requirements. The committee provided the following comment:

One of the aims of the regulation is culture change, thinking about diversity and inclusion by design. Members of the community are facing barriers today and it can be disheartening for them to be told to wait for culture change. This reality is why regulatory change is often pushed for. The goal is to make things better, not to stop things.

The committee was also hesitant in folding additional requirements into individual accommodation plans because section 28 currently does not apply to small employers. employment standards requirements for section 30 (performance management), 31 (career development) and 32 (redeployment) apply to all employers who use those practices – regardless of the number of employees the organization employs. The committee noted the importance of accessible performance, career development and redeployment and also spoke at length about a broader cultural change that ensures persons with disabilities have opportunities to advance in their careers based on merit and without discrimination.

The committee also discussed the potential for discrimination in career development and performance management. The committee agreed on the importance in open and honest discussion between employer and employee in making sure employers meet accommodation needs. Strong communication may help ensure performance or career development can be assessed for employees fairly and on merit.

Other items and conclusion

The committee wanted this final report to reflect the substantial discussion and debate between members. The committee spent time carefully considering the recommendations, presentations and the public feedback. Specifically, extensive time was spent on recommendations considering volunteers, emergency response planning and the general topic of emerging technology and changing workplaces.

While a recommendation on technology and inclusive workplaces was not made, the committee had an ongoing dialogue about the positive impact of technology and changing workplaces on persons with disabilities. The committee also discussed how technology can sometimes act as a barrier to employment, specifically when algorithmic bias in software unknowingly causes discrimination towards persons with disabilities.

The committee also considered the changing nature of workplace relationships between employer and employees. Members had a dialogue about emerging issues such as the prevalent use of contractors and the emerging growing gig economy.

Throughout this process the committee valued the public feedback and input received from the survey, submissions and presentations. The committee thanks the public, presenters and their stakeholder networks for participating in the process.

The committee looks forward to the minister’s response on these final recommendations.