Accessible Canada Act draft standard on employment open for public review

Accessibility Standards Canada has released a public review draft of the Accessible Canada Act (ACA) Standard on Employment (the Draft Standard). Public feedback will be accepted until October 17, 2023. We encourage federally regulated employers to review the Draft Standard with a view to its application in their workplaces, and to offer feedback to inform any final version.

The ACA framework

Accessibility Standards Canada (ASC) requires federally regulated organizations in both the private and public sectors to adopt and publish accessibility plans detailing the organization’s policies, programs, practices, and services in relation to identifying and removing barriers faced by persons with disabilities. Employers are also required to create progress reports on accessibility plans and establish feedback processes for consulting on accessibility initiatives.

The ACA anticipates the development of “standards,” which are essentially codes of organizational conduct intended to remove barriers and improve accessibility in the following areas:

• employment;
• the built environment;
• information and communication technologies;
• (c.1) communication, other than information and communication technologies;
• the procurement of goods, services and facilities;
• the design and delivery of programs and services;
• transportation; and
• any other area designated under regulation.

ASC is the statutory body created by the ACA to develop these standards. The standards developed by ASC are initially voluntary, but may become law if adopted as a regulation under the ACA by order of the Governor-in-Council. The Draft Standard is ASC’s first effort at expanding on accessibility principles for the areas listed above.

Contents of the Draft Standard on employment

Given that the Draft Standard may become a final standard, and may ultimately be adopted as a regulation, it is important for federal jurisdiction stakeholders to review its contents for application in their workplaces.

The Draft Standard specifies requirements for a “documented and systemic approach to developing, implementing and maintaining accessible and inclusive workplaces.” Its “requirements” are aimed at all stages of the employment life cycle, including:

• recruitment;
• hiring;
• onboarding;
• retention;
• promotion and career development;
• performance management; and
• separation.

Many of the guidelines established by the Draft Standard are focused narrowly on the practical elimination of common barriers. For example, the Draft Standard requires that:

• job candidates are not prompted to disclose disabilities unless in response to a job requirement.
• sign language interpreters, advocates, or other support persons are permitted during job interviews.
• employees with disabilities are offered a variety of accommodations, such as assistive technologies.
• employers implement protections to allow employees to safely voice concerns about accessibility without fear of reprisal.

Guidelines like these are likely familiar to employers with experience accommodating employees with disabilities under human rights legislation.

Much of the Draft Standard expands beyond practical barrier identification and removal to focus on systemic, organizational change. For example, the Draft Standard requires that organizations:

• Consider providing paid sick leave, dental plans, pharmaceutical plans, extended health care, access to disability leave and vacation beyond statutory minimums.
• Establish an accessibility ombudsperson and a confidential complaints process.
• Facilitate participation by workers, unions and external stakeholders in development, implementation, maintenance and continual improvement of the “inclusive and accessible employment system.”
• Communicate using inclusive language with a focus on eliminating ableist, racist, colonialist and gendered terminology.
• Establish representation targets for their workplaces against workplace availability.
• Take reasonable steps to demonstrate use of artificial intelligence technology in recruitment is not discriminatory by disclosing its use to candidates and by making public evidence that they have required suppliers to take reasonable steps to involve persons with disabilities in ensuring their products are not discriminatory.

Requirements like these are very broadly worded and it is not clear what compliance will entail. 

As it stands, the Draft Standard will benefit from detailed review and commentary by federally regulated organizations who will ultimately be expected to implement these recommendations.

The author wishes to thank Rachel McDonald, summer law student, for her contribution to preparing this legal update.