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Rules tighten for employers in Ontario


Employers with Ontario-based workforces face new mandates designed to break down barriers to hiring the disabled and encourage current employees who have not disclosed disabilities to seek accommodation without fear of reprisals.

While the Accessibility for Ontarians with Disabilities Act passed in 2005, regulatory standards are being rolled out through 2025. They include the province's employment standard, with which large private-sector employers must comply effective Jan, 1, 2016. Organizations with less than 50 employees have until 2017 to comply with the law.

In Ontario, 39.1% of disabled people between 16 and 64 years old were either unemployed or not in the labor force in 2009, which was almost three times the 14.1% rate for Ontarians without disabilities, according to the latest data from the Ontario Ministry of Training, Colleges and Universities.

“There's a highly skilled workforce of people with disabilities that, if given the chance to work, they can,” said Edie Forsyth, corporate director of consultant Accessibility Experts Ltd. in Oshawa, Ontario. “It's a mindset of employers, and it's about shifting that mindset about the capabilities of disabled individuals.”

The standard includes mandates that begin during recruitment, with employers required to notify internal and external job candidates that accommodations are available — a requirement that can be met with a statement in job advertisements — and work with applicants to determine what accommodations might be needed.

For example, employers can tweak their job postings so blind or visually impaired applicants can access the text via screen readers.

“The process of hiring people has to be accessible,” said David MacDonald, president of Ottawa, Ontario-based CanAdapt Solutions Inc., which trains developers on Web content accessibility guidelines. “There are a lot of different things we can do without a lot of expense.”

All large employers must enact a written process to develop documented individual accommodation plans for disabled employees, including information about the accommodations and how disabled employees can collaborate in developing them, experts say.

For example, an employee with hearing difficulties can request accommodation with a microphone or hearing assistance system.

For current employees with an undisclosed disability, the standard represents an opportunity to seek accommodation, as employers can face major fines for discriminating or retaliating against disabled workers under the accessibility law and Ontario's Human Rights Code.

“There are a lot of protections under the law,” said Ellen Waxman, a Toronto-based strategic management consultant, leadership coach and accessibility expert at Ellen Waxman Consulting Inc. “Having said that, people feel they don't want to disclose because they are worried.”

Directors and officers should be aware of the requirements because they have a legal duty to ensure their organizations do not violate the law and individuals can be held responsible for violations, particularly if a corporation is in financial distress, said Eric Kay, a Toronto-based partner at Dickinson Wright P.L.L.C.

Given the challenges of tracking every employee to ensure compliance, a D&O policy would be attractive, although some policies may exclude fines, he said.

The fines for noncompliance can be punitive — up to $100,000 per day for corporations and $50,000 for an individual, although the violation would have to be “pretty egregious” for the maximum fines to be levied on individuals, he said. “If they're cavalier about it or become repeat offenders, the penalties will start to rise to reflect that they are not taking it seriously.”

Manitoba has followed Ontario's lead by passing similar legislation in 2013, with the first of five standards — the customer service accessibility standard — that went into effect Nov. 1.

The momentum already underway may be accelerated due to the Liberal Party of Canada's landslide victory in last month's federal elections, experts say.

“We think it's going to go right across to be Canadawide,” Ms. Forsyth said.