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HomeMy WebLinkAboutCAO-09-028 - Municipal Response to Provinces Ontarians with Disabilities Proposed Employment Standard REPORT Report To: Finance and Corporate Services Committee Date of Meeting: May 11, 2009 Tracey Hare Connell, Executive Director of People Submitted by: Services and Organizational Development Angela Kotlarchuk, WSIB/Accommodation Coordinator Prepared by: (ext. 2814) Ward(s) Involved: All Wards Date of Report: May 1, 2009 Report No.: CAO-09-028 MUNICIPAL RESPONSE TO PROVINCE’S Subject: ONTARIANS WITH DISABILITIES PROPOSED ACCESSIBLE EMPLOYMENT STANDARD RECOMMENDATION: That the summary of response to the Government of Ontario's Proposed , as attached to CAO- 09-028, be endorsed; and Accessible Employment Standard further, That staff be directed to submit a formal written response to the province by its deadline of May 22, 2009 . BACKGROUND: The Government of Ontario has drafted and circulated for public review its Proposed Accessible Employment Standard. This new standard is the fourth of five standards the province is planning to implement under its Accessibility for Ontarians with Disabilities Act. The first standard is the Customer Service Standard, which became law Jan. 1, 2008. The second is the Transportation Accessibility Standard. The third is the Accessible Information And Communications Standard. The fourth is the Proposed Accessible Employment Standard which will require organizations to set out policies, procedures and requirements for the prevention, identification and removal of barriers across all stages of the employment life cycle for persons with disabilities. The Province of Ontario is asking for a written response by its deadline of May 22, 2009. This is an important standard as it aims to remove and prevent barriers that limit the participation of Ontarians with a disability in the life of our communities. Improving the accessibility of our communities is not only the right thing to do, but additionally makes ïí ó ï good sense economically and socially. It is estimated that in twenty years, 20 per cent of the people living in Ontario will have a disability. This standard aims to remove barriers now and in the future so people with disabilities can participate fully in society. Summary of Proposed Standard Date of compliance The proposed legislation identifies the City of Kitchener as a Class F organization which is defined as a public sector organization with at least one employee. The proposed legislation states a Class F organization will have one year to comply for 2 of the standard requirements and 3 years to comply for all the other requirements. Requirements Generally, this standard sets out specific requirements for recruitment, assessment, selection, hiring, retention, and separation and termination from employment. It requires organizations to: Develop, adopt and maintain an accessible employment policy statement Develop policies that support implementation of the commitments included in the policy statement Provide training to all employees on disability awareness, accessible employment policies and procedures; and accommodation procedures (also train at new employee orientation) Provide accommodation to potential employees upon request to enable their participation in the recruitment, assessment, selection and hiring stages of the employment cycle Document procedures to ensure the accommodation of applicants with disabilities in the employment cycle Document the essential duties of vacant jobs and provide to applicants upon request Provide employment opportunity information to organizations that provide employment services for persons with disabilities Note in employment advertisements that individual accommodation shall be provided for applicants who meet required qualifications Make all hiring information or communications available in accessible formats upon request and inform job applicants that this is available Provide individual accommodation plans for employees Develop a procedure for resolving disputes related to individual accommodation plans Ensure employees with disabilities receive orientation, training on essential job duties, performance management, career development, accommodation plans, separation and termination information consistent with their individual accommodation needs or plans Adopt, document and maintain a procedure for the return to work of employees who are absent from work as a result of a disability not related to a WSIB injury or illness Explain emergency and public safety information to employees with disabilities using formats consistent with accommodation needs Develop and document procedures to make emergency and public safety information available to employees with disabilities Make employment related information or communications available using formats or methods required by employees with disabilities (eg. Orientation materials, performance ïí ó î management processes, return to work procedure, separation and termination information) Identify indicators of progress towards accessible employment and collect data that measures performance against selected indicators REPORT: City staff has met with representatives from the Region of Waterloo and City of Waterloo, who share similar concerns with the proposed standard and will submit congruous feedback regarding the proposed legislation to the province. We are aware that the Association of Municipalities of Ontario (AMO), the Association of Municipal Managers, Clerks and Treasurers of Ontario (AMCTO), and the Ontario Municipal Human Resources Association (OMHRA) are submitting responses to the province outlining municipal issues and concerns. We have had an opportunity to review the submissions of AMCTO and OMHRA and incorporate and support the concerns identified by both of these groups into the City’s response to the province. In preparing the City of Kitchener’s response to the province's proposed standard, supervisors and managers from the following array of divisions were invited to provide input and feedback: Community Programs and Services, Program and Resource Services, Community Centres, Communications and Marketing, Facilities Management, Traffic and Parking, Crossing Guards, Cemeteries, Golf Courses, Event Operations, Fire, Operational Support and Analysis, Legal and Human Resources. Potential impacts were discussed and input was received to ensure all internal stakeholders were informed of and had the opportunity to provide input into the City of Kitchener’s response to the proposed legislation. Attached to CAO-09-028 is a summary of the response that incorporates external feedback from OMHRA and AMCTO as well as internal feedback received regarding the proposed legislation. Should council endorse the content contained within that summary, staff will submit a response directly to the province. FINANCIAL IMPACT: Deloitte performed a cost impact assessment on behalf of the Government of Ontario and estimates that the cost to meet the compliance requirements of the proposed standard for a public sector employer will be approximately 0.002% of total revenue. The estimate was made on the assumption that the Government of Ontario will provide tools and materials and employers will utilize and redirect existing staff to meet the requirements of the proposed standard. Excluded from the estimate was costing for information and communication in accessible formats or methods, individual accommodation requirements and “upon request” elements. Until the proposed standard is further clarified and finalized, a detailed financial impact study by the City of Kitchener would be ineffective. ïí ó í CONCLUSION: While, the City of Kitchener wholeheartedly supports the proposed Standard’s aim to remove and prevent barriers that limit the participation of Ontarians with a disability, a few concerns about the feasibility and clarity of the timelines and requirements cannot be ignored and will be duly noted in the written response to the Government of Ontario if so directed by Council. ACKNOWLEDGED Tracey Hare Connell, Executive Director of People Services BY: and Organizational Development ïí ó ì Summary of City of Kitchener’s Response to the Government of Ontario’s Proposed Employment Accessibility Standard The City of Kitchener supports the objective behind the proposed Employment Accessibility Standard, that being “the prevention, identification and removal of barriers across all stages of the employment life cycle for persons with disabilities. Better access to employment opportunities would benefit this group and the City would benefit from access to an under-tapped labour force. The City of Kitchener questions however, whether an Employment Accessibility Standard under the AODA is actually needed when law already exists in Ontario under the Human Rights Code that covers many of the same policies and practices referred to in the Standard. The existence of two sets of employment rights, complaint mechanisms and enforcement regimes – one under the AODA and the other under the Human Rights Commission, could cause confusion for all parties involved. We ask the Ministry to carefully consider whether the value added by duplication of the well-established employment rights system within the Human Rights Code would balance against the effort, cost and potential confusion of a new regulation. Should the Ministry conclude that this Regulation should be issued now, we ask that the Ministry consider whether all the documentation requirements in the proposed Standard need to appear in the final regulation. We are referring to such provisions as subsection 3.3 “Accessible employment policies”, 4.1 “Providing accommodation to potential employees”, 4.2 “Job information requirements”, 5.1 “Providing individual accommodation plans for employees”, 5.2 Orientation requirements”, and 5.5 “Return to work (Non-WSIB) requirements”. We do not dispute the desirability of having such documentation in place; we do however, have a concern with the costs, both human resources and hard dollar costs, associated with implementing the full AODA package over the next few years. We have a concern that a number of Standards are being developed and issued under the AODA that overlap in compliance deadlines and reference each other in requirements. For example, the proposed Employment Standard frequently references the Information and Communications Standard which we understand has not yet been finalized. It is not possible for the City of Kitchener to fully understand the impact of the overlaps without the ability to review all the proposed Standards at one time. We therefore recommend that the Standards be harmonized and released for comment at the same time. In the event this is not possible, we trust that all the submissions and concerns about the Information and Communications Standard will be reviewed and taken into account prior to further discussion of the Employment Accessibility Standard. The City of Kitchener is concerned about the fact that there are 150 requirements contained in the first four Standards issued or proposed to date and that 140 of these have compliance deadlines of 5 years or less. For Municipalities, the compliance deadlines in the proposed Employment Accessibility Standard are 3 years or less. We therefore recommend that the Ministry consider phasing in the more onerous ïí ó ë requirements of this Standard closer to 2025 which is the desired date for full accessibility for persons with disabilities. The costing report prepared for the Ministry by the consulting firm Delloitte assumes that the government will provide tools and materials related to policy and procedure development, training, and indicators of progress as required under the Standard. The City of Kitchener strongly recommends that these aids be available in a timely manner and that the compliance deadlines are not activated until the Ministry certifies that the compliance package is complete. The compliance deadlines should not start when the regulation is filed if the support materials are not available. The costing report also assumes that employers will utilize and redirect existing staff to meet the requirements of the proposed Standard. Based on the above two assumptions by Delloitte, they concluded in their report that the financial impact incurred by employers to meet the compliance requirements would be marginal. They advise however, that certain costing was excluded from their analysis, those being costs for: Information and Communication in accessible formats or methods; Individual Accommodations; and elements of the Standard that are required “upon request”. At this time, the City of Kitchener does not have sufficient staff resources available to develop and implement the large documentation requirements in this Standard, nor the technical resources available to provide information in other formats and possible individual accommodation needs. We have concerns about the province’s financial commitment to the proposed Standard. Without financial support from the province, implementation of the proposed Standard will not be feasible within existing resources, requiring the municipality to increase funding for this work. The City of Kitchener operates on a 10 year budget forecast. We would therefore need more time to forecast and incorporate these costs into our budget process. Should the province provide financial assistance and/or resources, this would enhance our ability to be compliant by the required timelines. The City of Kitchener has a concern with the obligated organizations “Class F” which includes all public sector organizations regardless of size. We recommend this be subdivided into separate classes, possibly the Provincial Government, larger municipalities and smaller municipalities. We further recommend the compliance deadlines be staggered so that larger municipalities would benefit from the policies, practices, procedures, and training materials developed by the Province, and the smaller municipalities could then borrow from the larger municipalities. The City of Kitchener would like to request further explanation or clarification on the following specific provisions in the Standard: Scope (section 1): We request clarification and clear definitions of the employment categories covered under the Standard because the terminology could be used differently among employers. For example, Students and Contract positions are not referred to in the Standard. We also question the status of individuals coming through a temporary help agency where the employer pays the temporary agency for the services. Recruitment, Assessment, Selection and Hiring Requirements (section 4): This section requires organizations to provide accommodation to applicants with disabilities ïí ó ê to enable their participation in the recruitment, assessment, selection and hiring stages of the employment life cycle. The City of Kitchener would like clarification on the extent to which an organization is required to go to accommodate an applicant. As a municipality we most likely cannot meet the definition for undue hardship; therefore, the additional costs would ultimately get transferred to the community by way of tax increases. We recommend the addition of the word “reasonable” be added to the accommodation. Job information requirements (section 4.2): This section refers to the requirement to document the essential duties of vacant jobs and provide the information to applicants upon request. We request a more detailed definition of “essential duties”. Further, we would like to understand the Ministry’s expectations around the qualifications required to determine essential duties, and the process that would take place if there was a disagreement over the essential duties identified. Recruitment requirements (section 4.3): This section states, “When recruiting, organizations shall provide information, including contact details, about the employment opportunity to organizations that provide employment services for persons with disabilities”. The City of Kitchener believes it would be beneficial for both employers and agencies providing employment services for persons with disabilities if the Province assumed the responsibility and cost of establishing a comprehensive job information exchange system. If this is not possible, we would like clarification on whether the above noted statement refers to “all job openings” regardless if there are existing procedures or collective agreement requirements around postings of job vacancies, or, job openings that have gone through the normal organizational procedures and are at the point of searching outside the organization for a candidate. Further, we request clarification on how far geographically we are expected to go in search of organizations that provide employment services for persons with disabilities and how will we know we have met the Standard requirements. Emergency and public safety information requirements (section 5.8): We have a concern that this section references a Standard that has not yet been finalized and released. This section requires organizations to explain emergency and public safety information to employees with disabilities and specifies workplace health and safety procedures and systems; including alarm systems. We request clarification as to whether this requires us to install alarm systems immediately in all our facilities or that the intent is employers explain the alarm systems if they exist. If the former is the requirement, the City of Kitchener would be financially challenged to meet the immediate timeline due to our vast number of facilities. Accessible Information and Communications (section 5.9): This section states “Organizations employing persons with disabilities shall make available the following employment related information or communications using formats or methods compliant with the Accessible Information and Communications Standard”. We have a concern that this section refers to a Standard that has not yet been finalized and released. Further, we request clarification on the timelines for compliance on this section, and whether this is to be done “upon request”. ïí ó é Indicators of progress (section 6): The City of Kitchener requests the government clarify what reporting and enforcement mechanisms it intends to use to ensure compliance with the Standard. As an employer, we need to understand what the compliance reporting requirements will be; how the Accessibility for Ontarians with Disabilities Act and the Human Rights Code will intersect; which tribunals will be designated for appeals; and, how the administrative penalties provision of the act will be used. With regard to the indicators of progress, the City of Kitchener would prefer to see these be of a qualitative rather than quantitative nature (eg, steps taken to remove barriers versus numbers reporting). ïí ó è ïí ó ç ïí ó ïð ïí ó ïï ïí ó ïî ïí ó ïí ïí ó ïì ïí ó ïë ïí ó ïê ïí ó ïé ïí ó ïè ïí ó ïç ïí ó îð ïí ó îï ïí ó îî