Parliament’s step forward to a barrier-free Canada: federal accessibility legislation comes into force

The latest Canada Labour Code amendments are not the only recent legislative changes that federally regulated employers must contend with. In July 2019, the federal Accessible Canada Act (the Act) came into force. The Act requires federally regulated employers to take further steps to remove physical and non-physical barriers that employees with disabilities face.

The Act

The Act’s purpose is to identify and remove barriers, and prevent new barriers, for persons with disabilities in a variety of areas, including employment. The Act interprets this purpose very broadly. A “barrier” is anything—including anything physical, architectural, technological, and attitudinal—that hinders the full and equal participation in society of persons with an impairment. A “disability” includes any permanent or temporary physical, mental, communication, or sensory impairment that, in interaction with a barrier, hinders a person’s full and equal participation in society.

The Act applies to federally regulated employers and imposes three general obligations on them, as follows:

• Accessibility Plans: First, employers must prepare and publish an accessibility plan that outlines employers’ policies, programs, practices, and services in relation to identifying and removing existing barriers, and preventing new barriers. Employers must do so within one year of a date set by the regulations, and prepare and publish updated accessibility plans every three years thereafter. In preparing accessibility plans, employers must consult persons with disabilities and set out in the plan how the employer conducted those consultations.
     
• Feedback Processes: Second, employers must establish a process for receiving feedback on how the employer is implementing its accessibility plan and the barriers its employees continue to encounter. On top of employer duties to consult while developing accessibility plans, this provides an ongoing mechanism by which employees can provide input on how employers can better address barriers they face.
     
• Progress Reports: Third, employers must prepare and publish progress reports regarding the implementation of their accessibility plans. As with developing accessibility plans, employers must consult persons with disabilities when assembling the report and must set out how it conducted those consultations. Furthermore, the progress report must outline how the employer considered the feedback it received from employees.

Accessibility standards and compliance

The Act further creates the Canadian Accessibility Standards Development Organization, which would allow stakeholders to provide input on developing model accessibility standards. These standards could become binding on employers. An accessibility commissioner will oversee compliance with the Act. Employers who contravene the Act can be liable for a fine of up to $250,000.

Take-aways

The Act’s requirements go above and beyond what employers are required to do to fulfill their duty to accommodate under applicable human rights legislation. The Act addresses accommodation on a more systemic level, whereas the approach of human rights legislation is more individualized. In addition to the accommodation itself, the Act requires employers to develop specific programs for removing barriers for disabled persons. Furthermore, the Act is notable for the degree to which it requires employers and employees to work with one another to achieve its aims.

The Governor-in-Council has not yet set the date by which employers must implement their accessibility plans. Even then, any date that is set will give employers at least one year to draft their initial plans. Other employer responsibilities under the Act will then flow from implementing these first plans. Still, it is not too early for employers to begin considering what barriers their employees currently face, how their accessibility plans will ameliorate those barriers and prevent the rise of new barriers, and how they will develop and implement their accessibility plans. In discharging each of these responsibilities, consultation with employees will be key.