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4 steps to legal compliance with Ontario's new accessibility standard

The purpose of the AODA is to develop, implement and enforce accessibility standards to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises in Ontario. The purpose clause of the AODA states, "recognizing the history of discrimination against persons with disabilities in Ontario," indicating the context and spirit in which the act and its regulations will be enforced.

Accessibility Standards for Customer Service

One of these regulations, the first to be implemented, is the Accessibility Standards for Customer Service (ASCS), Ontario Regulation 429/07, which must be complied with by private sector organizations on or before January 1, 2012.

ASCS establishes accessibility standards for customer service for the disabled in Ontario. It applies to every designated public sector organization, the private sector, and all employers who employ at least one worker in the province of Ontario.

Public sector organizations have been required to comply with the ASCS since January 1, 2010. Private sector organizations will be required to comply by January 1, 2012.

The ASCS sets out the requirements for all Ontario businesses to establish policies, practices and procedures governing the provision of goods and services to persons with disabilities in Ontario.

First, is that the goods or services must be provided in a manner that respects the dignity and independence of persons with disabilities. Although no business that I have ever represented would ever think to show disrespect to a person with disabilities, this principle is somewhat subjective and what amounts to dignity and independence for one individual clearly may not be the same as dignity and independence for another person with a disability.

Second, the provision of goods and services to persons with disabilities must be integrated by the employer into its provision of goods and services to enable the disabled individual to obtain, use or benefit from the employers goods or services. There is a subordinate clause in this requirement that reads as follows: "unless an alternate measure is necessary." The ASCS does not provide for a definition of this phrase and it somewhat confuses the principle of ensuring that persons with disabilities obtain or use or benefit from the employers goods or services by law.

Third, persons with disabilities must be given an opportunity equal to that given to persons without disabilities to obtain, use and benefit from the goods and services offered by the employer. This equality of opportunity requirement, from a customer service perspective, is laud worthy. However, the ASCS does not give clear indication on how this principle will be applied by businesses — both large and small — across Ontario.

Fourth, employers’ policies, practices and procedures must address the use of assistive devices by persons with disabilities to obtain, use or benefit from the providers' goods or services. The phrase "assistive devices" is not defined in either the AODA or the ASCS. This could be one of the most challenging aspects of the principles for compliance with the ASCS for businesses.

Fifth, employers must communicate with a person who has a disability in any manner that "takes into account the person's disability." It is unclear whether this means that there is a measure of customer sensitivity and responsiveness on the part of employers, or whether it goes further.

Sixth, every employer that has at least 20 employees in Ontario, shall prepare one or more

documents describing its policies, practices and procedures and, upon request, give a copy of such documents to any person upon request. This permits public accountability, on the one hand, but also permits disability advocacy groups to promote accountability by demanding employers with 20 workers or more provide them with their policies, practices and procedures with respect to compliance with the AODA.

The ASCS then goes on to deal with persons with specific disabilities and providing assistance in obtaining goods and services from employers across Ontario.

For example, if a person with a disability is accompanied by a guide dog or other service animal, the person must be permitted to the premises with the animal. In the rare exception where a service animal is excluded by law from the premises, the provider of goods or services shall ensure that other means or measures are available to enable the person with a disability to obtain, use or benefit from the employer's goods or services.

Further, if there is a support person assisting the person with a disability, the employer must ensure that they are not prevented from accessing the premises with the disabled person.

There is also a requirement under the ASCS that if facilities used to assist a disabled person are temporarily disrupted, that such notice should be made available to the public and persons with disabilities. Every business that employs at least 20 workers in Ontario shall prepare a document that sets out the steps to be taken in connection with the temporary disruption. A copy of this document should be made available to any person requesting it.

Employee training

The next significant requirement for employers in Ontario to comply with the ASCS is the subject of training. Every provider of goods and services must ensure that designated persons receive training with respect to the provision of goods and services to persons with disabilities.

A designated person includes every individual who deals with members of the public or third parties on behalf of the employer, as well as every person who participates in the development of policies, practices and procedures governing the provision of goods and services to members of the public and third party. Therefore, anyone who has any potential dealing with the public, including persons with disabilities must receive specific training.

The training must include a number of specific criteria, including:

1. The review of the purposes of the act and the requirements of the AODA;

2. How to interact and communicate with individuals with various types of disabilities;

3. How to interact with persons with disabilities who use assistive devices or require a guide dog or the assistance of a support individual;

4. How to use equipment or devices at the business premises that may help in the provision of goods and services to an individual with a disability;

5. Appropriate responses to an individual who has a particular type of disability who is having difficulty accessing the provider's goods or services.

The training required by the ASCS must be given to each individual as soon as practicable after he or she is assigned applicable duties. Every employer in Ontario that employs at least 20 workers must prepare a document describing the training policy, a summary of the contents of the training and the details of when the training is to be provided, both initially and on an ongoing basis. This is available to scrutiny by the regulator. Every employer with at least 20 employees in Ontario must keep records of the training provided under the section and make it available to the regulatory when requested.

Every provider of goods and services in Ontario must establish a process for receiving and responding to feedback about the manner in which they are serving the needs of the disabled. This "feedback process" must permit individuals to provide their feedback in person, by telephone, in writing, whereby an electronic text by email or disc or otherwise, as a legal requirement of the ASCS. The feedback process must specify any actions that a business will be prepared to take if a complaint is received. Such documents must be kept by every employer with at least 20 employees in Ontario and be available to the regulator. Every business must also provide goods and services in a manner that is consistent with the ASCS.

Action steps for legal compliance

The ASCS is the subject of recommendations and compliance guidelines of the Ministry of Citizenship and Immigration. Employers will be required to extensively review their own operations, and take the following steps to achieve compliance by December 31, 2011:

1. Conduct a ASCS legal assessment to identify the necessary compliance steps to be taken;

2. Prepare the necessary policies, procedures and practices in writing, in consultation with

the Joint Health and Safety Committee, to ensure that the new legal requirements are

properly established, but also that they do not compromise workers' health and safety;

3. Provide general training and information to those implementing the provisions of the

AODA and the ASCS;

4. Ensure that the policies, procedures and documentation are fully and properly complied

with to ensure that there is both legal compliance, and practical integration of these new

legal requirements into the business model and interests of the employer.

Norm Keith

Norm Keith, an OHS lawyer and consultant, is a partner at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com, or visit www.ehslaw.ca for more information.
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