AODA: Protect your organization through documentation
The Accessibility Standards for Customer Service require employers with 20 or more employees to document policies. The
Integrated Accessibility Standards Regulation require employers to document policies and multi-year accessibility plans if they have 50 or more employees. So smaller organizations might breathe a sigh of relief knowing that they don’t have to document and keep track of their accessibility policies and plans under the Accessibility for Ontarians with Disabilities Act (AODA).
But are small organizations really doing themselves a favour by not writing documentation when the government does not require them to do so? A similar question applies to large organizations: Are they protecting themselves adequately if they wait until mandated due dates to initiate, maintain, complete and release documentation?
In the case of documentation exemptions, both the customer service and integrated regulations state the purpose of the exemption is to give small organizations time to comply with the law. However, the wording of the exemptions allows for them to be removed at a later date. Whether you are or are not legally exempt, there are a variety of reasons to prepare and maintain documentation before the compliance dates.
- Alternative legal reasons to document: This is the priority reason to maintain documentation, even if you are not obliged under the AODA. Remember that the Ontario Human Rights Code trumps the AODA, and if a person lodges a human rights complaint against your organization, documentation will likely be one of your best methods of defense. Not because a judge will necessarily agree with your organization based on your documentation, but because a judge will see that you performed due diligence by maintaining documentation regardless of exemptions or compliance dates. For the same reason, large organizations should also attempt to comply with the AODA documentation requirements earlier. A paper trail demonstrating good faith is an excellent method to either win a case or reduce penalties.
- Employment: Since it is clear the Ontario Human Rights Code already compels your organization to deal fairly and without discrimination toward any person, perhaps this section alone should make documentation a priority for all organizations. As an example: The paperwork that the Integrated Accessibility Regulation’s employment standard requires is logical and will be useful in defending your organization’s actions regarding a specific employee with a disability.
- Promoting a responsible and capable image: Since obligated companies will post their policies on their websites (if they have one), the documentation can be an indicator of responsible practices, organizational success, and also the size/operational capacity of the organization. Transparent and measurable policies are good for business because they demonstrate a caring attitude toward the public. In this case, policies and documentation can augment the profile of a small organization. If, on the other hand, a person requests a document under the AODA from a small organization, and the organization responds that it doesn’t have to have documentation under the law, the requester immediately knows your employee threshold.
- People with disabilities and their companions: We do not have a number to quote for the number of people that accompany people with disabilities, but do know that 15.5 percent of Canada’s population claims to have a disability. When people surrounding the person with a disability truly care, they are terrific advocates and clearly see if your organization is embracing accessibility. When people with disabilities and their entourage are shut out from places in society, they have to choose other places to spend or earn their money. The potentially significant loss of sales should provide enough incentive to organizations to do what they can to accommodate persons with disabilities and their companions. However, there are additional concerns. Anyone who is not allowed to access an organization’s public premises can ask to see the organization’s AODA policies and multi-year accessibility plans. People may ask to use the feedback mechanism to complain to your organization. Left unsatisfied, a person may lodge a formal complaint with the province. Under the customer service standard, the government may receive complaints as early as January 1, 2012. Obligations to provide emergency response information in the integrated standards also mean people can complain if you do not have documentation ready at the beginning of next year.
Consider another example under the employment standard: An obligated organization is required to maintain documented individual accommodation plans for persons with disabilities who require accommodation. Once initiated and maintained, the documentation process outlined in this obligation can help your organization in court, and might even help you avoid the courtroom altogether. Since the individual accommodation plan is transparent and requires employee consultation, if the paperwork is well structured and your organization has acted honourably, this file alone can stop frivolous claims and be useful in court.
There are numerous reasons that dates of obligation have been set, and too many are political. Legally, the AODA does not protect your organization from complaints under the Human Rights Code unless the AODA complies with the Code or provides a superior level of protection for people with disabilities. The compliance dates are a real legal problem that organizations must face.
Where the AODA is helpful is in the documentation processes that act as a terrific guide to protect your organization, customers and employees. When deciding whether to initiate documentation, consider proper paperwork to be as useful as a security camera. If you are not obligated yet, you do have a choice as to which documents to initiate, and you may just choose the ones that are of concern, like employment.
Make the AODA and all of the documentation work in a positive way for your organization. After dissecting each obligation, there is a clear logic applied to compel you to follow the rules. Remember, everyone was supposedly represented on the standards committees. The obligations that survived were accepted by at least 75 percent of the committee. On the cutting floor are a lot of other great recommendations that one day may pass into law. Using a best practice approach, organizations will at least comply, but consider upgrading their requirements. Aim to meet Code expectations as soon as possible. Since your organization has the first map to follow in these standards, use the information to your benefit, regardless of politics. Politics does not save you in a court of law.
By, Suzanne Cohen Share
Access (SCS) Consulting Services