Ask The Experts Transcript
Ruth: Good morning, everyone. My name is Ruth Wright with the Conference Board of Canada. I’m a Director with the Leadership Human Resources Research area here and I will be your moderator for the day. I’m pleased to welcome all of you to this panel-style webinar where we have experts in the field of accessible employment to answer your questions. On behalf of the Conference Board of Canada and our partner, the Accessibility Directorate of Ontario, I’d like to thank you for taking time to join us today.
Before we begin, I’d like to provide you with a little bit of background and context on what the Conference Board has been doing in terms of our research program around accessible employment practices. As many of you are aware, for the past few years we’ve been working with the Accessibility Directorate of Ontario to produce various tools and resources that employers can use to make their workplaces more accessible to people with disabilities. And in 2012, I know many of you have access to this document, we produced the Employers’ ToolKit: Making Ontario’s Workplaces More Accessible for People With Disabilities.
In 2015, we updated and released a second edition of the ToolKit. The ToolKit itself runs through each Section of the Employment Standard that is loosely organized around, you know, the career life cycle. And it interprets related workplace practices that will meet or exceed the Standard. We work directly with the ADO to translate the legal requirements into workplace practices that would be acceptable and appropriate, and then to produce the ToolKit and really identify great practices, we had the opportunity to work with employers, people with disabilities, lawyers, and some employment service providers. So we’ve had numerous partners that have supported us in this project, and we thank you all. Between all our partners and our own work in the area of disability management, there are quite a number of tips, tools, and examples that are readily available for you, but you know, there are always nitty-gritty questions that come up and it can be a little bit different for every context.
Also, since producing the Tool Kit in 2012, we’ve worked with the ADO to develop additional resources for employers to help them become more accessible for people with disabilities.
All these resources are available for free. We’ve developed an accessibility web page and everything is hosted there, and you can see here that it’s an image capture of the accessibility web page. You can’t really read it, but we have a range of resources on the site, including some case studies of employers who are implementing great practices. There’s research and a report related to the business benefits of hiring people with disabilities, and this is a great piece to put in the hands of your leaders, your Champions, and adapt thinking around the business case to your context. We have some great blog posts from accessibility thought leaders and we’re adding to these all the time.
Something new is we’ve posted our first audio vignette, and these are audio-taped interviews with employees who have disabilities who very frankly discuss the barriers they faced in the workforce and their suggestions on what employers can do to help remove the barriers. So quite a bit of new material. We’ll be posting it in dribs and drabs over the next month, so do revisit the website from time to time.
You’ll also notice on the web page, and this is an answer to one of our first questions. You’ll see on the right that there’s a page called Compliance Questions. You’ll see the Ontario Trillium there just below that on the right-hand side. And if you have any questions that are really specific related to compliance or the legislation, the Accessibility Directorate of Ontario has an e-mail address and a hotline that you can send questions to. And there may be some things that come up today that we can’t answer that you would have to go directly to the Accessibility Directorate. But we’re going to do our best to answer as many of your questions as we can today.
So time to get on with it. And it is my pleasure to introduce our experts. And I’ll introduce them in more detail in a moment, but we have Laura McKeen, Trisha Pokorny, and Lauri Sue Robertson. So each expert is going to give you just a couple minutes of background on themselves, so we get a sense of the types of insights that they can provide. I’ve asked them to answer the question "where should employers start in becoming an accessible and inclusive employer."
So Trisha Pokorny, I’d like to introduce you first. Trisha is the Senior Manager of Accessibility at OLG, where she’s responsible for interpreting and implementing the Accessibility for Ontarians with Disability Act province-wide. Trisha is a true pioneer in providing accommodations to persons with disabilities. I met Trisha maybe a dozen years ago and she’s been very helpful in my own education around this. Prior to joining OLG in 2009, Trisha was at Casino Niagara Falls and Falls View Casino Resort for 13 years where she developed and managed an award winning diversity and accessibility program. She’s been very active in employer and various coalition networks and is much sought after for advice in public speaking.
So Trisha, would you like to spend a minute introducing yourself?
Trisha: Sure, thank you. Welcome, everybody, to this webinar today. As Ruth said, I’ve had a lot of background in the area of accessibility. Being disabled myself, I am a totally blind woman who travels with a guide dog. I was blessed with sight for 23 years, so I’ve walked both sides of the path, the sighted world and the world of so-called disability. But through that disability, I’ve learned there are as many obstacles as there are that are thrown out our way, there is plenty of opportunity to turn those obstacles into opportunity and make something very good and be resourceful education-wise, employment-wise, and helping others to follow that same path and understand what accessibility is all about.
Ruth: Well, thank you, Trish.
Ruth: Now my pleasure to introduce Laura McKeen, a Partner with Cohen Highley LLP. She is a litigation lawyer with a focus on residential tenancies, municipal planning and zoning and appropriations. Laura provides practical advice to businesses about the Accessibility for Ontarians with Disabilities Act, the AODA, and she’s also a champion for employment practices in her own firm. In 2015 she was selected by Business London as a recipient for the 20 under 40 award.
Laura, would you like to introduce yourself?
Laura: Thanks, Ruth. And thank you all for attending today. As you said, I’m a litigation lawyer, so a part of my practice is to provide compliance advice and risk management advice to corporations, and so I expect that I’ll get a number of questions along those lines from the participants today.
As part of my extracurricular activities, outside of the litigation context, I sit on the Government of Ontario’s Partnership Council for Employment Opportunities for People with Disabilities and while I am not a person with a disability, like most Ontarians, I have loved ones who are persons with disabilities and I have colleagues that experience, you know, barriers in employment and what we would like to do and what our corporate culture here is to reach through those barriers and to make sure that those employees have every opportunity to excel and that’s what I would like to discuss with you today.
Ruth: Now last, but definitely not least, I’d like to introduce Lauri Sue Robertson. Lauri Sue is the President and Owner of Disability Awareness Consultants. The goal of Disability Awareness Consultants is to help employers, coworkers, and employees with disabilities work together in a safe, dignified, and respectful environment. Lauri Sue is an expert in accommodations needed by those with speech, visual, physical, intellectual, psychiatric, neurological, and learning disabilities. She was on the Provincial Committee for the Employment Standards for the Accessibility for Ontarians with Disability Acts.
Lauri Sue, we’d like to meet you.
Lauri Sue: Hi, y’all. I am Lauri Sue Robertson. I’ve been doing disability awareness training and site audits for barrier-free design since 1995. I was born with some disabilities and have developed a bunch more later on. Just last week I found out I had another one, that my balance is gone in my ears. Didn’t know about that one, but we do go on with life. And I think the most important thing that I teach everybody in my workshop is—please do not be afraid of people with disabilities. We are not here to hurt you. We want to contribute to life like everybody else and have a life like everybody else. We may do things differently. We may look at things from a different angle, but that doesn’t mean that we don’t want to contribute and enjoy life like everybody else. Have spouses, families, cats and dogs, what everybody else does, and get out there and participate in the workforce and as consumers. And I think the most important thing that I like to tell employers is don’t be scared of us. And when I say “us,” of course, I refer to people with disabilities, but I don’t know all the people with disabilities in the world. I just am talking about myself and my friends and my coworkers, the people that I know who are disabled. And I’m sure for anything I tell you, there’s bound to be somebody out there who’s going to say, "oh, no, I don’t agree at all." But, I am talking general principles and that most of us are not the least bit scary and we do not want to hurt you. We just want to be part of life like everybody else.
Ruth: Thank you, Lauri.
Ruth: And that leads into one of the first questions, and that was around the business benefits of accessibility. that is one that we’ve actually done a lot of work on. And one of the things I want to say around the business benefits is around skills and labor shortages and how—what a valuable resource this is and an untapped resource. Our projections at the Conference Board are that we are really going to need to boost our labor supply in the coming years. What we know is, you know, we talked about the aging workforce and the baby boom generation as they ease out of the workforce. I don’t think what’s well known is that there is a bulge within the baby boom bulge. There’s a population bulge in individuals who are in between.. around age 58, 59, and 60. And what we do know is the average age of retirement is about 62, approaching 62. It’s gone up a bit. And what we also know is that the number of new workforce entrants coming into the labor market is shrinking. So we actually have more people exiting our labor force than entering it over the next few years.
And we do know in Ontario that the economy is picking up. We had some good news on the trade front that’s suggesting that there’s quite a bit of expansion of business in Ontario. One of the, I guess, silver linings to reduced oil prices and a lowered currency, but anyway, this is a resource that we need to access.
Among other things, you know, we see study after study that speaks to the things like better job retention, higher attendance, lower turnover, enhanced performance and work quality, and even, you know, better safety records. We need people who can think differently, think out of the box. People from different life and lived experiences to help us become more innovative. And of course, we know that inclusiveness really matters to customers, even if we, ourselves, don’t have a disability. There’s someone in our life who does, and when we see businesses that are accessible, it matters to us. It matters to all of us, and these are people, you know, it’s about community. We all want to live and work in great communities.
So let’s get on to some of the questions. And this first question actually is for Trisha. Is it your experience, generally, that the turnover rate is higher for people with disabilities?
Trisha: No. In the years that I have recruited and hired persons with disabilities in the gaming industry, I have found that the bulk, if not all of the individuals that I’ve hired, have stayed with the company. We’ve taken into consideration what their situation and unique abilities are. We bring them into the position that we know that they’re going to be comfortable with and they’ve voiced to us that they are—you know, they have the essential duties and feel they have the essential duties to do the job. And we don’t see them taking a lot of time off. They’re not often calling in sick. They’re hard workers and a great benefit to our company.
Lauri Sue, maybe this is one that would be good for you. In our research, we’ve often heard from employers that people with disabilities don’t apply. And then we’ll talk to people from employment service agencies and they say we can’t get past the employment screens. So have you got any suggestions about how and when to best source candidates with disabilities?
Lauri Sue: Absolutely. If you want to find candidates with disabilities, my first suggestion is go to the advocacy groups such as the March of Dimes, Canadian Institute for the Blind, Canadian Mental Health Society, Canadian Hearing Society. There are others you may not have heard of like The Little People Association that is—there’s an LPA of Canada and Little People Association in the various provinces. The Learning Disabilities Association. The Aphasia Society for people who have speech impairments. The Centers for Independent Living. And Spinal Cord Injury Association. It used to be called cerebral palsy. And don’t forget very important groups that provide employment services to Veterans such as Wounded Warriors, and Forces at Work. Not all of these organizations are in every province, and some cities that are further away from major metropolitan areas, they may have to do a more detailed search or call me or somebody to ask for help to find them. And definitely don’t forget federal and unemployment immigration offices, because they list positions people with disabilities. And I think if you’ve got any employees as self-identified as being disabled, you can ask them for any suggestions they have through their own linkups or networks that they may have. There’s a lot of folks out there, and what Ruth was referring to as, you know, the baby boom retiring, when you all have a gap in employment numbers, when you have holes in your staff to fill, there’s a huge population of people with disabilities sitting out there wishing that they could get through your doors.
Ruth: Trisha, how do you approach it?
Trisha: Right in our own backyard we’ve got not-for-profit organizations, as Lauri Sue had mentioned. So we’ll look to see what we did back at Niagara Casinos is we invited the not-for-profit organizations to the morning session where we went through all the jobs that we recruit for. And then each organization, dependent upon, you know, who their clientele are that they represent, they’ll take a look to see what is the best fit for their clients, and then together, we work to see if we can sort of bridge that gap between getting their folks ready for, you know, the recruitment process, doing little mock interviews, explaining in a little more detail what the jobs entail, and what our industry is all about and take it from there.
Ruth: Okay. So we’re sourced our candidates. This may be another one for Lauri Sue. I think we’ll have more questions for Laura when we come to the accommodation piece. A couple of questions here that maybe I can bundle together a bit. First of all, we want to make sure that our candidates get through the screening process and that we onboard appropriately. Is there anything differently we need to be doing around the candidate screening and onboarding that is different when you’re trying to bring in people with disabilities?
Lauri Sue: Yes. I would suggest that you make sure your requirements are really fully justified, not just a matter of habit or what you did the last time or the last guy to be in the job. Don’t ask for things that don’t pertain specifically to the job. We’ve frequently seen employers ask for a driver’s license for a job that doesn’t involve driving. So you want to make sure you’re asking for things that are justifiable.
You want to include statements in your advertising that say you’ve got an inclusive environment and include the international symbol of disability access, the little icon of the person sitting in the wheelchair, because applicants from other disability groups will generally recognize that this includes them, too.
You want to make sure you advertise in as many different venues as possible. So in paper, but also online and through the advocacy organizations. You want to state in your advertising, and this is critical, this was part of the AODA law, you must state in your advertising that accommodations are available throughout the hiring process upon request in advance. Then make sure you follow through. If the candidate asks for an accommodation and you don’t know how to you find it, ask the applicant, but don’t expect the applicant to provide the accommodation. It is your responsibility to do that.
And quite important, a number of companies do telephone screening before they bring a person in. If you’re going to do that, please try and send a letter or an e-mail ahead of time to set the time for the call in case the person requires some assistance to manage a phone call at the other end. They’ll provide their own accommodation for that call, but they may need notice in advance to do it.
I’ve had some employers who decide they’ll do phone interviews as a way of avoiding the accommodation request. That’s not a very legitimate thing to do and I’m sure none of you all would do that. It’s good to book meetings by letter or e-mail in case your candidate has barriers to spoken communication. I can hear some well enough to do phone interviews, but I lip-read better, so if you really want to have a meeting with me, it’s better for me to be able to see you.
Don’t insist on skills like computer skills or force everybody to apply online if it’s a job for a cleaner or a maintenance worker or something that’s not going to have anything to do with internet accuracy.
And finally, for onboarding employees who have disabilities, don’t assume that the accommodations you need for the interview will be needed or necessarily the same for the onboarding experience. It may be different steps. You’ve just got to ask your new employee. If the accommodations are needed for onboarding and initial training, don’t assume they’ll be needed for the entire term of the employment. Ask about that, too. Don’t be afraid to ask these questions. People are so afraid of making a mistake that they would rather avoid talking to the person with a disability all together, which is why under the AODA we require the training, because you want to be sure that you’re getting the answers that you need in order to make it work.
If somebody needs accommodations in order to work, it’s very important to make sure that they are there right at the start of the employment. You can’t expect the employee to start without the accommodations unless you think it would be okay to tell me to spend the first week of my employment sitting in my car in the parking lot waiting for you to find me an accessible office. I don’t think you’d do that to me and you can’t do it to anybody.
Ruth: Okay. Thank you, Lauri Sue.
A question has come in related to this, and this is perhaps for you, Laura. How much information can an employer request? What can they ask about proving an accommodation is needed or not needed or if there could be some even disagreement around what might be an alternative accommodation?
Laura: Well I think that first off, employers should accept the request for accommodations in good faith and approach the accommodation process from, you know, again, that good faith, that collaborative spirit of "we want to make sure all candidates and employees have the tools they need to be successful." So just with all employees, whether they are a person with a disability or not, you want to make sure that they have the best tools to do their job.
So the information that the employer can ask for are about the functional limitations and what possible solutions there are. There’s an opportunity to get expert opinions or advice where needed, but generally, the requests for information are those that are—the information that’s reasonably needed to determine the nature of the limitation or restriction, so to determine what the barrier is and to be able to respond with what the most appropriate accommodation is. It’s going to be a conversation, because the employee or candidate with the disability likely will have a lot of information about how they’ve been accommodated in the past, for school or previous a employer. They’re going to be in a very good position to provide the employer with some information about potential accommodations. However, the employee is not going to know, or the candidate is not going to know what the employer’s specific arrangements are going to be, what their internal processes are, so the employer may have solutions that or ways to remove those barriers that the employee is not aware of. So I think it is really important to approach it in a collaborative spirit rather than, you know, either party insisting on one particular kind of accommodation. So having that dialogue is important.
Ruth: Okay. There’s a question that came in for Trisha. You were talking about networks. And the question is, "is there a network for employers seeking to recruit people with disabilities that can put them in touch with all the various local agencies?" As Lauri listed them, there are quite a few, and that’s a bit of a challenge. Is there a network approach to this?
Trisha: Lauri Sue could probably answer that much better than I could. What I ended up doing was looking, you know, within our community at the time—it was Niagara Falls—to see what organizations, all not-for-profits, were within our jurisdiction and sending out personal invitations to them to see if they were interested or not. So there was quite a variety, quite a selection, and knowing, you know, at least thinking that some of these organizations may realize that this is not the type of industry that their clients would either enjoy or be able to work in just because of the nature of the job. Some of them chose to not attend, but we did have a good reception from all of the invitees. So I’m not sure if there is. Lauri Sue, perhaps you might know if there is an employee, employer network?
Ruth: It depends on what community you’re in, but many communities do have them. Somebody’s typed in that Simcoe County has a great network. I know London Ontario does. I’m missing other communities we’ve worked with. Hamilton where there are some good networks, but there are a few areas where maybe they’re not at strong.
Lauri Sue: I was going to say the very thing that you did, Ruth, which is any employer networks that you do find would probably be local to your own community, and you would find them best through other employer groups that you might be in, whether it’s a human resources professionals association or a management organization. That would be your best bet for finding any employer networks for recruiting. As far as I know, there’s nothing provincial or federal that would have organized employers into that kind of group.
Ruth: I can’t forget in Ottawa, and my own case is called EARN, E-A-R-N, which is an acronym for the network that’s run through the United Way agency. So they’re all organized a little bit differently and funded a little bit differently, but we’ve got a great one in Ottawa that’s growing.
Ruth: We probably should move on to some accommodation questions, and just because I want to make sure we cover this area. It’s so important and we’re already at the half hour mark. So one of the questions we have here, Laura, is when creating an accommodation plan, who should be involved? Can you bring in third parties? How does this usually come about?
Laura: Yes, you can involve third parties, but it’s important to remember the employee’s confidentiality should be maintained, so it’s only those parties that are reasonably necessary. At our firm what we do, since it’s easier to talk about that than clients, what we do is we have the Human Resources individual, our Human Resources manager is involved, and I am involved as the accessibility officer for the firm.
In addition to that, we can have individuals such as our IT department can be really crucial in developing some of those accommodation strategies. Supervisors or other employees might be required to know just a portion of the plan. They don’t need to know anything. They don’t need to be involved in every component of developing an accommodation plan. But where another employee is involved, certainly they will need to know what their role is. What we do is deal with the confidentiality and consents and who was involved in what part. We do that right up front before the accommodation plan is developed through a form that the employee making the request fills out. So it’s very clear what internal third parties are involved and what external third parties. So we have a longstanding relationship with Community Living London, and they provide job coaches for certain employees. So the job coach would need to be involved in the accommodation plan. In other cases, there can be support persons, doctors, physical therapists that might need to be involved, again, for portions of the plan process. So yes, it’s important to involve people who are necessary to the process to make it more efficient, but again, that employee confidentiality is to be respected.
Ruth: Okay. I just want to flip this question, because it’s somewhat related. So what if the applicant hasn’t requested an accommodation, but you think maybe they might need one? When is it legal to ask if an applicant or even an employee needs an accommodation?
Laura: Again, we don’t want to make any assumptions about when a person with a disability needs an accommodation. We have employees here and there are many employees that have disabilities, but don’t really require an employer accommodation, and that’s fine. When you are—you do have an obligation to ask employees if they require any assistance. What we do is send out an e-mail reminder, along with the accommodation request form annually. We have an internal system. And so we send out any employee who requires accommodation, please let us know. And then during the annual review process, there’s a discussion with every employee about "do you have the tools that you need to do your job?" And if an employee is then willing to make an accommodation request, the employee has obligations as well in the accommodation process, and one of those obligations is to make a request for accommodation when it’s needed. Oftentimes you’ll see employees resist making requests for accommodations in circumstances where it’s mental health or addictions, and those are very difficult situations. And I would encourage employers to get legal advice where they have a situation where an employee isn’t making a request for accommodation, but the employer has a reason to believe that there’s a disability-related need.
Ruth: Okay. Thank you. We’ll come back to accommodation right away, but I just want to respond to a lot of information that has come in about employer networks, and I just want to touch on this. One person says that local Chambers of Commerce are a great hub for nonprofit agencies and that helps connect to employers. And then we also have the Ontario Disability Employment Network, ODEN. They can help organizations link up employers with various agencies.
A few more here. I’ll pull them out as I can. Just back to the accommodation piece. So I get "I’m an employer and I’m asked for an accommodation plan and I don’t know how it provide it." Laura, what do I do?
Laura: Well, when I have clients call in and they’ve either never done a formal accommodation plan or, particularly small and medium employers where maybe they don’t have a designated HR person or they don’t have someone with experience in Human Rights issues, the first thing I will do is refer them to the Toolkit. From a cost perspective, it’s a lot easier than hiring a lawyer. Ideally, there’s no particular format that the accommodation plan has to be. It has to be in writing if you’re an employer with over 50 employees of Ontario. And ideally, the accommodation plan, you know, meets the employee’s needs. It’s consistent with the employer’s requirements. Doesn’t cause much disruption in the workplace. And allows the employers to maximize their productivity, but the actual guts of what the plan looks like is going to be different, depending on what the employer—what industry the employer is in and what resource the employer has available. I do remember that clients look at the Toolkit and look at examples of what an accommodation plan should include, because really, that is the most efficient way for an employer who’s starting from scratch to get a very generic, bare bones plan that they can tailor to their history.
Ruth: And those are available in the Toolkit.
Lauri Sue, you’re in organizations and helping integrate individuals. Is it expensive typically to accommodate individuals with disabilities? What are some typical accommodations that you see?
Lauri Sue: Well, the average cost for an accommodation is under $500. Many times an accommodation will be something as simple as changing a person’s hours of work to make it easier for them to achieve their transportation, or in one case I know, somebody who needed her desk turned around in her office so the window was at her back instead of shining it to her eyes. Sometimes it’s really simple stuff like that or a different kind of light fixture. I mean, very often it’s really small stuff. Some employers get in a panic and assume that we all want an elevator and wheelchair accessible washroom and go out and really panic on these things, but like four per cent of the employees who have disabilities need major changes like that. Four per cent. Most of us do not need huge stuff.
I think one point I really want to make about accommodation is, once they’re in place, you’ve got to check frequently to ensure that they’re the right ones and that nothing new has arisen. You’ve got to check in frequently, because even though you may think that you’ve made everything totally comfortable and fine and perfect, if your employee doesn’t feel comfortable in saying, "by the way, this screen isn’t really the right one for me", you could wind up injuring an employee or losing them after a short time when they can’t fit into your workplace, but don’t panic on this stuff. It’s usually not a huge deal and most things are not expensive.
Ruth: Okay. We have a number of specific ones here. One of the questions that came in was based on the IASR. All businesses of a certain size must meet specific standards for access to employment, but The Ontario Building Code does not currently expect modifications to buildings that are not new or undergoing renovations. This employer currently has no public entrance without steps. Is it an expectation that an employer in this situation modify at least one entrance for barrier-free access based on the possibility of a person with a physical disability wishing to gain entrance for application for employment? Or can we have signage directing applicants to reach us in another method of contact? For instance, e-mail or telephone? Laura, this is probably one for you.
Laura: So the person asking the question is right, that nothing in the AODA or the Building Code currently requires retrofits. It requires you to alter a building when you are already planning to do renovation or build new, but those pieces of legislation don’t change an employer or a service provider’s obligations under the Human Rights Code. So the Human Rights Code obligations do apply to the employers, and those obligations could require an employer to provide an accessible entrance or make other modifications to the build’s environment, which might not be expressly required under the AODA or the Building Code. So it is important, I think, to remember when we’re discussing the AODA and the Integrated Standard that these things don’t happen in a vacuum and that there still is—there still are Human Rights obligations and the Human Rights Code still does apply.
When it comes to directing applicants with limitations to how to contact us you, if you don’t have an accessible entrance, certainly that is going to be something that when you are discussing a need for accommodation in the initial phone call to applicants, you know, if someone has applied online and you’re calling to set up interviews, it would be prudent to let them know that you don’t have an accessible entrance so that there’s not a really awkward or embarrassing situation where an applicant shows up for your place of business and isn’t able to gain access. So just from a practical perspective, when you are making those phone calls to set up interviews, if you are, you know, making the offer as you’re required to say that, you know, "we will provide accommodation", it might be prudent on your website or in that discussion to say, you know, "by the way, we don’t have an accessible entrance. If you require that, you know, accommodation, let us know."
Lauri Sue: Can I chime in something here? This is Lauri Sue. One of the things that’s really important to also remember is that while the AODA does not require that you maintain an accessible environment for the Employment Standards—excuse me. You are required to provide accessible customer service. So people do have some way of accessing your goods and services. And so that may mean that at some point, you have to say, "Okay, you can’t get in here. How are we going to do it?" You can’t just say no.
Ruth: And then within the Human Rights Code, there is a provision for undue hardship that would come into play for the business as well.
Laura: Absolutely. The Human Rights context, you know, is parallel to the AODA and complimentary in a lot of ways. But there are legal tests to determine what your obligations are under the Human Rights Code, and I think that that’s a little bit beyond what we’re talking about here, but it certainly is something that all employers need to be aware of. Just because you are compliant with the AODA, that doesn’t mean you get to ignore the Human Rights Code obligations.
Ruth: And Trisha, here’s one for you. In what circumstances might an accommodation, a specific requested accommodation, it be denied by an employer? And if, in that situation where you want to propose an alternative, there is some issue around the requested accommodation, what’s your next step? What do you do? How do you handle that?
Trisha: Well, if there is a request—the request has to be relevant to the essential duties of the job. So we might get an accommodation request from an employee that is not an accommodation that would necessarily assist on the job. It would assist them perhaps at home. So it has to be job-related. So at that point, you know, we would say—we would work with the employee, because we want this to be a mutual agreement on what works best. We’ll always discuss with the employee, "what are some alternatives? Some innovative ideas? Some creative ideas to finding solutions to making the essential duties of the job a little bit easier for them to fulfill?" But it absolutely has to do with the job, not with outside of the work area. So if it’s something they’re wanting for a home accommodation, we’re not going to accommodate in that way. There are other government agencies that they may be able to go through to get assistive device program or other government-related agencies that will help them out with home and schooling-type accommodations.
Ruth: Okay. We have a question here about service support animals. And I’m sure this is going to come up. The individual says, "I’m increasingly seeing recommendations for employers to provide accommodation for use of emotional support animals. Is an emotional support animal considered a service animal? The AODA Customer Service Standard says a letter from a physician or nurse practitioner is all that’s required to support this need. And Canadian Service Dog Foundation suggests ESAs and service animals are not the same." So have you got anything that you can tell us about service animals in this context, Laura?
Laura: Yes. So the Customer Service Standard, what it does say is that for the purposes of the Customer Service Standard, an animal is a service animal if a person provides a letter from a physician or nurse confirming the person requires the animal for purposes of disability. This applies to, you know, again, customers. The same definition is not found in the Integrated Standard, which relates to employment, which causes some confusion. In addition, there are different definitions that apply in a Human Rights context.
Generally speaking, there is a conceptual difference between an emotional support animal and a service animal. And whether a particular animal is either an ESA or a support animal is going to depend on the facts of every case and employers shouldn’t automatically assume one way or another. Again, that request to have the animal attend the workplace with the employee must be taken in good faith by the employer and investigated in good faith. And while each request is going to be decided on its own particular facts, employers should, you know—this is becoming a reality of employment and life in Ontario and employers should consider broadly whether they’re going to even make a distinction between a service animal and emotional support or comfort animal. In certain employment contexts, there may be very little disruption in the workplace, you know, depending on the particular employment context. Some employers might not see a need to really investigate if it is going to boost that particular employee’s productivity and it’s not going to cost the employer anything. You know, perhaps it is worth it for the employer to make the accommodation, you know, given the employee takes responsibility for the animal and any damage to property, those kind of considerations will be relevant for the employer. However, again, under the Human Rights Code, if the request is – if it falls within the Code, the employers are going to have to accommodate up to the point of undue hardship and, you know, whether that animal is a comfort animal or emotional support animal or a service animal, there’s some gray area there and it’s going to have to be decided on the facts of each particular case.
Ruth: Just a really, really quick answer on this one. You mentioned renovations. If an employer is doing renovations to their establishment, then do they have to follow the Building Code? For example, if they add a new floor to a building, do they have to add an elevator, in case we might have someone who needs access to it?
Laurie: You know, certainly I encourage—everyone should be following the Building Code when you’re doing renovations. Right? You know, that’s just meeting government requirements, minimum basic government requirements is important and mandatory. However, when you are planning large scale renovations, many, many architects and builders can give you advice on barrier-free design, and incorporating those barrier-free or accessible elements during a planned renovation can be significantly less costly than making alterations to meet Human Rights Code obligations later on down the road.
So—or AODA obligations, you know, if that Building Code ever does make retroactive requirements.
So businesses, when considering planned renovations, should at least turn their minds to what sort of barrier-free elements we add in proactively just as a prudent step to make their business and services more accessible to employees, but also to customers.
Ruth: Okay. I’m going to jump back to the other one. Somebody has raised a question about allergies to service animals. What do we do, then, if bringing a service animal into our organization creates another issue with another employee?
Laura: Yeah. This is a very common concern and a legitimate one. Most service animals, employees are not permitted—when the service animal is working, no one should be petting the service animal or really interacting very much with the animal, which minimizes the risk to the employee with allergies. Changes to office setup, office location can minimize the impact on the employee with allergies. Again, this is more of a balancing of rights that needs to happen with employers and accommodations for both employees are important, but it doesn’t mean that the service animal is not permitted in the place of business. It does mean that, you know, the employer will have to be sensitive to certain issues and to maybe make adjustments on seating location or other things like that.
Ruth: Okay. We’re running out of time. So maybe we’ll go just a few minutes long. We should touch on the return to work. So the whole area of disability management. Is there, and I’ll toss this one over to you, Trisha, is there a standardized approach that has to be taken for developing a return to work plan or do you have to do a lot of customization for each one?
Trisha: Well, your return to work program should be as unique as the employee. So depending on what the situation is, you want to work with, you know, the employee and the employee’s physician to find out what is going to be the best plan of action. What might be good for some people may not be for others. You know, sitting down with the employee and having that conversation and getting that plan suited to their needs at that time. And it may be a graduated return to work program, so building little by little, adding more responsibility to the job or more hours to their day, that sort of thing. You know, you can still follow that, you know, general format of a return to work program, but it’s important to find out from the employee, you know, what are some of the things that are going to work best for them based on their particular situation.
Ruth: Okay. And perhaps this is more of a legal issue for Laura, but what can an employer ask in terms of, you know, medical information? How often can information around the medical support be asked for? Is there anything around there? Any cautions?
Laura: Yeah. The employer, you know, typically doesn’t need a diagnosis; however, functional limitations are clearly important. You’re going to want to know any limitations on lifting, hours of work, sitting, standing. Those things are going to be crucial for developing a return to work plan that is not going to injure the employee any further, and it is going to be effective in getting that employee back to work. So information is important, but the level of medical information versus functional limitation information is a fine line that needs to be navigated and where employers feel that they don’t have enough information, then perhaps they need to consult with legal counsel to find out what that line is so that they’re not crossing any boundaries that they don’t want to cross.
Ruth: Okay. Now, we’re running out of time here. Just as kind of wrap-up for the session—we’ve got another specific question here. Sorry. What if the employee can no longer perform their job there without substantial training? And there may be, say, if you’re in a factory situation there may be safety concerns in other parts of the building. What if we just can’t move the individual to another job because they’re just not skilled for it or there’s some other issues?
Laura: So the accommodation and getting the individual back to work in their pre-disability job is always ideal, but that’s just not always possible. So the issue of whether an employee is entitled to a job other than their pre-disability job is up for some debate and there’s a lot of gray area in there. There’s a certain line of cases that talk about bundling of job duties and when an employer is required to sort of create a new position by bundling existing duties to find a job for an employee who has been off and is returning to work.
What the courts have said is an employer isn’t obligated to create a make-work job that has no value to the employer. So it must be a position that is meaningful and of some value. However, the employer is also not obligated to put other employees at risk because they have new positions that have all of the heavier duties instead of the lighter duties intermixed with the heavier duties. So employers can show undue hardship and therefore have met their duty to accommodate, because on the basis of health and safety to other employees.
Similarly, when we’re talking about health and safety requirements for the existing job or for the modified job, there’s an important distinction between essential job duties and nonessential duties, and essential health and safety requirements and other ones that can be modified or waived. Basically, what an employer has to do is assess the risk of accommodation, whether there is risk after accommodation, so after modifying or waiving the health and safety requirements is big enough that it outweighs the benefits of enhancing quality. And if that balancing act is not in line, it will be considered that the employer has undue hardship, because the risk to health and safety is so significant. So what I would recommend that employers do if they’re in a situation where they have this concern, other than contacting your legal counsel, which I’m aware, I always encourage that, but The Ontario Human Rights Commission has established guidelines for employers to consider when they’re making accommodation and there are concerns in the context of health and safety requirements. So those are available on the Ontario Human Rights Commission’s website and they provide some questions. Like give some employers some guidance on making these determinations.
Ruth: Okay. Great. That’s a good resource to be aware that have we forget about.
Ruth: We’ve hit the stroke of noon and we’ve unfortunately run out of time. What I’d just like to do is for each of our experts on any 30-second kind of last tip or suggestion as we wind up the panel? Lauri Sue? Any tips or observations as we close off?
Lauri Sue: Just that training for managers and supervisors at a superior level is really vital so they understand not only what their obligations and duties are, but how to help their employees navigate the new environment, you know, to work well with the new coworkers who are disabled or returning workers. Very important that a high level of competency is instilled in managers and supervisors.
Ruth: You know, and I always say training is never wasted. So some of the things that make for great management practices in the area of accessibility, they’re just fundamentally good management practices. So this is going to have extension and benefit to your managers overall, and generally it’s going to help them interrelate with their individual employees as needed. So training is never wasted. So thank you for that, Lauri Sue.
Trisha, any last words?
Trisha: I think what’s important for all of us on the call is sharing information and, you know, feeling that you can pick up the phone and call another organization, ask things regarding their employment practices or any practices as far as that’s concerned from an accessibility perspective. It has to be a win/win situation for all of us, for the employer, for the employees. Yes, we have legislation we have to abide by and so why not share that knowledge? Because all of us will require it at some point in time in our life. Feel free to reach out to other people and connect with them to find out how they approach situations.
And Laura, any last words?
Laura: I have to echo what Trisha said. I think that, you know, when your Human Resources staff or whoever it is that’s part of your organization who is responsible to provide accommodations and accommodate employees and candidates, they need to be confident in the process that you have developed and in their ability to have that initial conversation with the employee with disabilities and not be afraid and have that be a barrier to that accommodation process. So by participating in these training seminars and other training for Human Resources or other managers within your organization, I think it instills that confidence to participate actively and collaboratively in the process.
Ruth: Fantastic. One of the things I would like to add, too, in closing off and before I thank our panelists is one of the resources that we are developing for the website is a frequently asked questions page. We thank all of you so much for the call for feeding in your questions. We tried to get to as many as we could. We ran out of time, which is probably a good thing, but do keep feeding those questions in and we will get answers for some frequently asked questions and that’s another resource that we’re going to add to our accessibility page, and that should be available in a few weeks.
In closing, I just want to remind you that the recording of today’s session will be made available in the next week or so when we get a chance to do a bit of editing. On behalf of the Conference Board and my research team and the Accessibility Directorate of Ontario, I’d really like to say, you know, thank you so much to Laura, Trisha, and Lauri Sue for your fabulous insights. This is just so helpful and I hope those of you on the call had your questions answered. I want to thank all of you for your participation today. It was great. I loved all of the questions. Have a great day. Please do keep sending us suggestions for ways in which the Conference Board and the network and partners around accessibility can help you in your accessibility journey. I’m easily reached at firstname.lastname@example.org, so keep your input coming. Have a terrific rest of the day. And thank you so much again Laura, Trisha, and Lori Sue.