Starting off the employment relationship on the right foot, with all parties knowing their obligations, is the foundation for a long and successful relationship. We recommend employers take the following steps to limit liability and clearly communicate obligations to employees.

Ensure your interview process complies with human rights legislation and the Accessibility for Ontarians with Disabilities Act (“AODA”)

Interview and hiring processes engage Ontario’s Human Rights Code (“Code”). Accordingly, it is crucial that you ensure these processes comply with the Code. Best practices include:

1. Offer and provide accommodation for the interview: Employers must accommodate applicants’ needs related to Code grounds for any part of the interview or hiring process to the point of undue hardship;
2. Ensure your interview questions comply with the Code: If inappropriate questions connected with Code protected grounds are asked, it could be inferred that the hiring decision will be premised on those questions. For example, if you ask many questions about an applicant’s family, and they mention they have onerous family obligations, they may conclude their family situation influenced your decision if they are not hired and make a claim against you;
3. Discrimination in the hiring process: Ensure you are assessing applicants on their merits, and do not make hiring decisions based on discriminatory reasoning, such as: (1) rejecting an applicant because they do not fit with the company image. This could be perceived as discrimination based on race, (2) refusing to hire someone because they are “overqualified.” This could be perceived as discrimination based on age, and (3) eliminating an applicant due to a gap in their resume. This could be viewed as discrimination on the basis of disability if the applicant were out of workforce due to medical reasons.

In summary, your hiring process should focus on transparency and evaluating applicants based on their credentials.

AODA Compliance

Further, you should ensure your hiring process is accessible to comply with the AODA. Employers can include the following in an accessible hiring process:

1. Accessible Job Postings: Ensure that your website complies with WCAG 2.0 web accessibility standards for layout and content;
2. Notice of Accommodation and Contact Information: Ensure your job posting states your business welcomes applications from people with disabilities and explain who the candidate should contact for accommodations; and
3. Accessible interviews: Be prepared to offer the following accommodations, if requested:

• An American Sign Language (ASL) interpreter;
• An interview scheduled at a time the candidate is most focused; and
• A location accessible for someone using a mobility device.

Vaccination as a condition of employment

Many employers are now inundated by wrongful dismissal claims from employees who were terminated due to non-compliance with mandatory COVID-19 vaccination policies.

Moving forward, employers can mitigate this risk by making vaccination a condition of employment in the offer letter. Essentially, potential candidates must be vaccinated against COVID-19 as a condition of the offer of employment, absent any medical or religious grounds protected by the Code.

You should have written employment agreements

While there is no requirement to have an employment contract in writing, employers should use written employment agreements because:

1. Enforceable termination provisions permit an employer to limit an employee’s entitlements on termination to the minimum required by the Employment Standards Act, 2000(“ESA”). Absent an enforceable termination provision, your employees are entitled to common law reasonable notice, which is often significantly more (up to 4 times more) than the ESA minimum entitlements;
2. Temporary layoff provisions permit an employer to place an employee on an unpaid temporary layoff. Absent a temporary layoff provision, employers are vulnerable to constructive dismissal claims; and
3. Employers can limit other entitlements upon termination, such as entitlement to bonuses over the common law reasonable notice period.

There are many other benefits to using written employment contracts, such as clearly setting out hours of work and vacation days.

Consider having new employees sign a confidentiality agreement

A confidentiality agreement or confidentiality provisions in an employment agreement that apply during and after an employee’s employment are an important tool to protect confidential information. For example, confidentiality provisions prohibiting the use of confidential client lists by former employees help to protect legitimate business interests and lawfully curtail competition.

In addition, absent a confidentiality agreement or confidentiality provisions in an employment agreement, employees have a common law duty of good faith and fidelity to their employer. This includes a confidentiality obligation not to use any confidential information they learned during the course of employment.

During COVID-19, virtual/online platforms have experienced explosive growth due to the need to host meetings and events that previously took place in person. The plethora of platforms now available is overwhelming. So prevalent is its use one year into this global pandemic that new phrases have been added to our lexicon, like “Zoom fatigue” and “Zoomed out!”.

Meeting online is a very different experience than meeting in person. Not everyone may receive information as effectively in this virtual world. With the shift to remote work, employers must also consider the accessibility of online platforms. Not only is the provision of an alternative communication channel the right thing to do, but it is also the law of the land.

Employer Human Rights Obligations

Employers have a duty to accommodate employees to ensure their success in the workplace while meeting compliance obligations under provincial Human Rights Codes, and in Ontario, the Accessibility for Ontarians with Disabilities Act (AODA).

The AODA

In Ontario, the AODA’s Integrated Accessibility Standards Regulation (IASR) includes the Information and Communication Standards. In s. 12(1), it states that every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities. Beginning January 1, 2021, the Ontario Government requires all public websites and web content posted after January 1, 2012 to meet WCAG 2.0 Level AA; this includes captions for all live audio content. As virtual meetings are a form of electronic (Internet-delivered) communication, web accessibility applies and WCAG (Web Content Accessibility Guidelines) must be followed. To not do so exposes an organization to human rights and AODA compliance challenges.

Why Captioning Matters

Why is captioning so important for accessible communication? You are likely familiar with captioning on the television and subtitles on DVDs and streaming platforms like Netflix. Captions and subtitles can be open (always on the screen) or closed (enabled or disabled in the video or device settings).

You may think that captions are just for people with hearing loss. This is an understandable assumption, but they provide so much more value.

Ease Language Barriers – In a country as proudly diverse as Canada, it is highly likely that your employees and viewers will not have English as a first language. The addition of captions breaks down barriers to comprehension. Also, some may have unfamiliar speech patterns that can be difficult to understand so a visual presentation of words spoken helps. Depending on the captioning tool used, you may also be able to translate content into different languages while the event is happening.

Hearing Loss – One of the top five disabilities, statistics indicate an estimated 20 per cent of Canadians 55 years and older have hearing loss, which increases with age. However, those much younger also have measured hearing loss. Many are unaware of a decline in their hearing, and those who suspect may not investigate due to the stigma attached. The presence of captioning ensures that everyone gets the message.

Visual Reinforcement – Have you noticed that captions and subtitles are popular with younger generations who don’t actually have any hearing loss? This is because people have an easier time understanding and remembering content if they can read along. It also supports those who have learning disabilities and Attention Deficit Disorder.

Overcoming Background Noise – Some viewers are overloaded by noise depending on what else is happening at their remote location or may wish to avoid disturbing others around them. Headphones don’t always work well, so the provision of captions on your virtual platform provides the option to turn down or turn off the volume and reduces distractions while enhancing engagement.

 

As a caveat, automatically generated captions powered by Artificial Intelligence do not meet user needs or accessibility requirements unless they are confirmed to be fully accurate. Because accuracy hovers around 80 per cent, this usually requires significant editing to bring it up to an acceptable standard. In comparison, steno captioning provided by a certified stenographer provides accuracy rates of 99% or higher. Accommodations are a collaborative effort; listen to the person requesting the accommodation. Some people are fine with auto-generated captions whereas others find it too difficult to follow and require steno captioning. Respect the needs as articulated.

How We Can Help

At Hum Law, we saw early on the importance of integrating captioning to enhance our brand and workplace communication. We have made concerted efforts to implement appropriate measures so that those who may be excluded by our new virtual world are included and are happy to discuss the solution that works best for us.

Employers should  confirm compliance with the current provincial accessibility and inclusion standards. We can help with a compliance audit. Contact Hum Law today at (416) 214-2329 to speak to an expert.