Proposed standards 'much more detailed' than current disability accessibility laws, lawyer says
Accessibility Standards Canada has published the first draft of its proposed Draft Employment Standard on accessible employment – the exhaustive 90-page document is the first step in what could be new accessibility regulations for federal employers.
The draft – “CAN-ASC 1.1 Standard on employment”— was created with the goal of eliminating barriers for disabled employees along all phases of the “employment lifecycle”. If adopted by the senate, it will become law for federally regulated employers such as banks and airlines, and will work alongside provincial accessibility laws already in place in some provinces as well as the Canadian Human Rights Act.
The draft is available for public feedback and comment until Nov. 14, 2023 on the Accessible Standards Canada website.
The most notable aspect of the proposed draft, said Megan Beal, partner at Fasken LLP in Toronto, is the scope and detail of the requirements around employer-created policies and strategies to support disabled employees during recruitment, hiring, onboarding, retention, promotion, career development, performance management and separation.
“The policy obligations, the training obligations, are really at a high level,” she said. “It's not written to suggest you only need one policy; it suggests you need multiple policies combating different things.”
Under the proposed Standard, employers would be required to design systemic strategies catering to the organisation’s size and purpose, including measurable objectives, separate policies, and clear roles and responsibilities of key parties in the workplace. Employee access to information, communication and technology will also be part of the proposed regulations.
Specific training parameters are laid out in the “Culture, Engagement and Education” section; for example, standards for disability-related leadership training would include a focus on attitudinal bias, conscious and unconscious bias, ableist attitudes and prejudices.
Separate organizational training is specified, including around the duty to accommodate, prevention of workplace barriers, allyship and bystander intervention.
“Employers have an obligation now, obviously, to accommodate employees,” said Beal. “Under this standard, there would be a requirement to put a policy in place that says how that accommodation process will work, how employees will be returned to work following a period of absence, and it also talks about developing a work disability management system, and suggests that there'll be policies created there as well, to provide direction to the organization about how these accessibility measures will be met, kind of top-down.
“This is setting out a framework for actually documenting what those policies and procedures and practices are, in a more formalized way.”
Accessibility barriers are addressed in the recruitment, hiring and onboarding phases, with specific rules around job postings and the hiring process, including testing parameters, selection criteria and application form design. Disability awareness training for individuals who interact with job candidates will also be a requirement of the proposed Standard, to ensure employees can “relate appropriately with persons with disabilities in a disability-confident manner”.
Further, if this Standard is adopted as regulation, organizations will be required to establish a DEI-trained interview panel and design an “interview question scoring grid” to equalize job applicant assessment.
The current level of detail in the Draft Employment Standard is unlikely to make it into the final adopted version of the regulations if it is signed into law, Beal said.
“In my view, is likely that some parts of it will be implemented, because it looks very similar to what we've seen in other jurisdictions,” said Beal.
“But some of the outlying things in here, I would be surprised if they make it into the regulation… If it were to go in its current format, it would be much more detailed than what we've seen under provincial statutes that govern accessibility, or even what we've seen under the regulations that currently exist under the Accessible Canada Act. They're detailed, but they don't have this level of detail. I don't suspect that this would ever become a regulation exactly as it's drafted.”
For example, the Draft proposes that employers would be responsible for costs of employees acquiring medical notes for accommodations.
Even if it is not fully adopted, Beal said, the draft could form the basis of the regulations that eventually do get passed. Her advice to employers, especially federally regulated employers, who want to keep ahead of the proposed regulations, is to review the draft and provide feedback.
“This is the whole point of having this consultation period, is that if there are things they don't like, or things that need to be addressed differently, now's the time to say so, because it does have the ability to potentially form regulation down the road,” she said. “Take advantage of this consultation window while it's open.”
The deadline for public comment has been extended to Nov. 14, 2023, and Accessibility Standards Canada has expressed special interest in feedback from disabled persons with lived experience. Once standards have been finalized, they will be submitted to the federal Minister of Diversity, Inclusion and Persons with Disabilities. If the Minister approves the Standard, federally regulated employers would then be required to comply.
