Accessible care

More than 1.8 million people in Ontario have a disability. For many of them, accessing goods, services and employment is a challenge because society does not always, or consistently, consider the accessibility needs of people with disabilities.  

The Accessibility for Ontarians with Disabilities Act (AODA) is relatively new legislation that places a responsibility on every organization to take proactive steps to become more accessible. The AODA is particularly important to the health-care industry because of the role health-care providers play in our communities and the extent to which their services are provided to people with disabilities.

Accessibility requirements under the AODA are being phased in over time with the ultimate goal of achieving an accessible Ontario by the year 2025. There are two Accessibility Standards currently in force – the Accessibility Standards for Customer Service (Customer Service Standards) and the Integrated Accessibility Standards (Integrated Standards). Both standards mandate the development of accessibility policies and training, though the scope of the latter is broader and addresses accessibility of information and communication – including website accessibility and feedback procedures – employment, transportation and design of public spaces.   

The private sector was to have complied with the Customer Service Standards by Jan. 1, 2012. The requirements of the Integrated Standards are being phased in between 2012 and 2021 with compliance deadlines varying depending on whether an organization has fewer than 50 employees (small organization) or 50 employees or more (large organization).

As of Jan. 1, 2016 every private sector organization will have new obligations under the Integrated Standards.

Small organizations will be required to ensure training on the Integrated Standards and the Ontario Human Rights Code, as it pertains to persons with disabilities, is provided to:

• employees and volunteers
• persons involved in developing policies
• persons who provide goods, services or facilities on the organization’s behalf

Small organizations are also required to ensure that processes for receiving and responding to feedback from employees, the public and clients are accessible to persons with disabilities.

Finally, small organizations will be required to comply with most of the requirements applicable to large organizations (set out below) by Jan. 1, 2017.

Large organizations will be required to improve accessibility for the public and clients/patients, upon request, by providing information about the organization’s goods, services and facilities in an accessible format or with communication supports, in a timely manner and at no additional cost. An accessible format includes, for example, large print, Braille, recorded audio and electronic formats, whereas communication support refers to captioning, plain language and other support that facilitates effective communication.

Large organizations will also be required to improve accessibility for employees and applicants for employment by:

• notifying employees, the public and applicants that accommodation of disabilities during the recruitment, assessment and selection process is available upon request, and providing that accommodation when requested
• informing successful applicants and employees about the organization’s policies on accommodating employees with disabilities
• upon request, making information required to perform the employee’s job, and information generally available to employees in the workplace, accessible to employees with disabilities
• establishing a written process to develop individual accommodation and a return to work plan, and preparing a written plan for individual employees when required
• considering the accessibility needs of employees with disabilities when implementing performance management, career development and advancement, and re-deployment.

Enforcement
To date, the Province of Ontario has identified non-compliant organizations in two principal ways: the failure to file required compliance reports; and spot audits.

In December of 2012 and again in 2014, every organization with at least 20 employees was required to have filed an online report with the Province of Ontario confirming AODA compliance. The next report is due in December of 2017.  

In the fall of 2015, the province launched a blitz of large retailers to ensure they meet the requirements of the AODA. The blitz places special focus on:

• The creation and making public of a multi-year accessibility plan that outlines the steps put in place to remove and prevent barriers for employees and customers.
• The development of individualized emergency response plans for employees with disabilities.

Retail is among the first industries to be targeted likely because of its high profile.  However, it won’t be the last. Any organization that serves the public, especially a clinic or other health-care practice whose clients are more likely to be persons with disabilities, may well become the target of a future compliance audit.  

Significant penalties may apply to a non-compliant organization. For a corporation, a penalty can range from $500 to $15,000; and for an individual or unincorporated organization, from $200 to $2,000. Where there has been a serious contravention, a daily penalty may be levied up to a maximum total penalty of $100,000 for a corporation and $50,000 for an individual or unincorporated organization, not to mention the negative publicity that will likely ensue.

Bottom line is this: the AODA is here to stay. It is therefore important that every health-care organization understands and meets the compliance standards already in place, and starts planning for the future.  

(The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Reading this article does not create a lawyer-client relationship. Readers are advised to seek specific legal advice from Sherrard Kuzz LLP or other legal counsel in relation to any decision or course of action contemplated.)

Leah Simon and ALEXANDRA Jamieson are lawyers with Sherrard Kuzz LLP, one of Canada’s leading employment and labour law firms, representing management. Simon and Jamieson can be reached at 416.603.0700 (Main), 416.420.0738 (24 Hour) or by visiting www.sherrardkuzz.com.