Disability access: Are you compliant?

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David Alli of Lawrences’ Employment & Labour Law Group.

The Accessibility for Ontarians with Disabilities Act (AODA) came into law in 2005, and has continued to have a significant impact on private, public and not-for-profit businesses in Ontario. Organizations should be considering whether they have been compliant with the AODA, as there are significant monetary consequences for failing to do so.

By David Alli

Although the government of Ontario initially focused on education, rather than enforcement, recently it has begun conducting spot audits levying fines against organizations that are found to be non-compliant.

The AODA develops, implements and enforces standards to achieve accessibility for Ontarians with disabilities. It should be noted that the disabilities covered under the AODA go beyond those of a physical nature that may be readily noticeable. The application of the legislation is also broad, applying, for example, even to employers with one or more employees or volunteers, as well as any organization that provides good and services, offers accommodation or facilities, or owns a building. Even those businesses without a public facing operation, such as manufacturers and wholesalers, are subject to the AODA.

The AODA, along with the Customer Service Standard Regulation and the Integrated Accessibility Standards Regulation, both of which are associated with the AODA, seek to make improvements in specific areas, including Customer Service, Information and Communication, Employment, Transportation, and Design of Public Spaces. Taken together, the legislative framework described above works towards the ultimate goal of Ontario being fully accessible by 2025. The path of implementation toward that target date includes staggered system of benchmarks to help Ontario organizations gradually achieve full accessibility in a timely but reasonably manageable manner, but with severe penalties for noncompliance.

Your business should be on its way

The first significant deadline under the AODA occurred on January 1, 2012, by which date all organizations were required to create an accessibility policy with respect to providing services to those with disabilities, among other limitations, and to train all individuals in connection with that policy. There are further obligations depending on whether the organization is classified as “Small,” having less than 50 employees, or “Large,” having more than 50 employees. Small organizations, with 20 to 49 employees and Large organizations were required to file a compliance report before the end of December, 2012.

January 1, 2014 marked the second significant deadline. By that date, certain requirements were to have been achieved in the areas of employment, information and communications, transportation and the design of public spaces. Some highlights of those requirements include that Small organizations are expected to have prepared policies and procedures on how to deliver goods and services to people with disabilities.

Moreover, as of that date, Small and Large organizations are required to post a Notice on their website if there is a disruption in facilities or services typically used by disabled people.

Additionally, if an organization creates or significantly reworks its website after January 1, 2012, it will have to incorporate features that make it accessible. Large organizations are required to develop and implement further accessibility policies and a multi-year accessibility plan detailing how the organization will achieve compliance. The details of the plan and strategy must be available on the organization’s website. Additionally, Large organizations must incorporate accessibility issues into the design of their space.

As of December 31, 2014, Small organizations, with 20 or more employees, and Large organizations are required to file a second report indicating that they are still complying with the standards under the Customer Service Standard Regulation.

Large organizations must also file a report indicating that they have developed plans and policies to meet the statutory requirements. Large organizations have the additional requirement of filing accessibility reports every three years.

As of 2015, Large organizations are expected to have trained all employees with respect to the provisions of the Human Rights Code that pertain to persons with disabilities and to have in place a system for receiving and responding to feedback with respect to the training policies and procedures that must be accessible to persons with disabilities. Small organizations are by now expected to have develop and implement accessibility policies describing how compliance will be achieved. Meanwhile, all organizations that utilize any electronic terminals or kiosks must make the same functional for those persons with disabilities.

2016 requirements

As of January 1, 2016, there are many standards that need to be in place, and hopefully your organization has complied with the requirements. At this point, Small organizations are expected to have provided training in connection to the Human Rights Code, and must have a process for feedback that is accessible to persons with disabilities, similar to the requirement for Large organizations commenced during the previous year. Large organizations are expected to have trained all employees with respect to the provisions of the Human Rights Code that pertain to persons with disabilities and to have in place a system for receiving and responding to feedback with respect to the training policies and procedures that must be accessible to persons with disabilities.

The Regulations under the AODA provide that Large organizations must comply with requirements to modify existing human resources policies in order to explicitly consider accessibility issues as they relate to recruitment, accommodation, performance management, career development and return to work processes. Building requirements The AODA has also made new accessibility amendments to the Ontario Building Code, which have been effective since January 1, 2015. These new requirements are intended to substantially enhance accessibility for persons with disabilities in both public and private spaces. However, for the most part, the amendments do not affect buildings that are already in existence where no renovation work is planned. Similarly, houses, townhouses and duplexes remain unaffected, with the exception of smoke alarm requirements.

The amendments apply to newly constructed buildings and existing buildings that are to be extensively renovated. In order to understand the effect of the accessibility legislation, consider that, on its own, the Ontario Building Code requires a barrier free path of travel through most building types. However, new amendments have added requirements such as a requirement for power door operators at entrance doors of most buildings and amenity rooms in multiunit residential buildings, as well as increased door width and modified ramp dimensions. Building and public spaces must also include surface indicators at the top of stairs and platform edges to assist those with visual impairments.

The amendments have also affected multistory buildings, as elevator access to all floors is required for most new buildings, as well as assembly buildings such as theaters and community centers, places of worship, care buildings, in addition to commercial and retail buildings.

Residential and office buildings over 3 stories in height and over 600 square meters in building area will be subject to the same standard. There are some exceptions, including restaurants, whereby they will not be required to provide access to upper floors if the same amenities can be provided on the lower floor.

Although the requirements for washrooms that are set in the Ontario Building Code, already included that they must be barrier free and provided in public spaces, the AODA has added, for example, requirements for power door operators at the entrance of the washroom, amended mounting height and location requirements of towel dispensers and dryers, required fold down grab bars, L-shaped grab bar, and increased floor area in the barrier free washrooms stall. Additionally, all new buildings will now require a universal toilet room and, in new multistory buildings, at least one for every 3 floors, and each universal toilet room must have an adult change table, except in buildings under 300 square meters.

The AODA views renovations as an opportunity to increase and enhance accessibility. However, simply because renovations are occurring does not mean that the AODA and the Regulations will apply. Small renovations affecting under 300 square meters of building area will not activate the requirement to incorporate the amendments now included in the Ontario Building Code. Further, existing buildings that are not undergoing any renovations, are not affected by these requirements. However, newly constructed buildings or buildings that are undergoing renovations that affect more than 300 square meters of building area, are obligated to include universal washrooms, and are impacted by the new requirements.

The last word

The AODA, together with the Regulations and the Ontario Human Rights Code, demonstrate a determined effort by the Ontario government to create an Ontario that is fully accessible, and it is essential that your business ensures timely compliance with the requirements, as they gradually unfold until 2025.

The above is just a cursory review of provincially-regulated organizations’ and service providers’ obligations in providing a barrier-free accessible space, whether on a day-to- day basis, or in completing renovations to their existing infrastructure.

Further information and detailed reports can be found at www.aoda.ca. The best advice for achieving and remaining compliant with the AODA is to seek competent legal advice regarding your organization’s responsibilities. If you do this before regulatory enforcement is at your door, your organization can avoid incurring serious penalties for non-compliance.

David Alli is an associate in Lawrences’ Employment & Labour Law Group. He represents and advises employers in all areas of employment law. David can be reached at 905-452-6872 or dalli@lawrences.com.

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