AODA is an opportunity

Your obligations under the  AODA and the regulations are extensive–I hope this perspective helps you see your obligations in a positive light!

Going back two posts to “How to comply with two laws at the same time” I asked a skill testing question to which nobody responded! Nevertheless, I will answer the question here because I know you are busy and don’t have the time to respond to my skill testing questions.

Is the Accessibility for Ontarians with Disabilities Act (AODA):

• Opportunity focused?
• Penalty focused?

Is the Ontario Human Rights Code (HRC):

• Opportunity focused?
• Penalty focused?

Both laws provide:

• opportunities for persons with disabilities (and others)
• opportunities for employers, landlords and others to avoid penalties
• penalties for non-compliance

The AODA (and regulations) is opportunity focused because this law:

• tells you exactly what is expected of you
• provides opportunities for the involvement of various groups in the development of specific standards
• reverses historical trends of discrimination against persons with disabilities
• gives you a positive opportunity to create a welcoming environment for persons with disabilities
• requires you to accept feedback directly from the public thus creating the opportunity for change
• requires that you regularly report to the government (and the general public) that you have created specific programs, policies and procedures
• allows for government inspection to ensure compliance
• is specific about assistive devices, service animals, support persons and communication style.
• Accomplish their goals via proactive requirements and reporting procedures
• Are proactive

The HRC is penalty focused because this law:

• Tells you what not to do (infringe a person’s rights)
• Sets up a list of infractions
• Allows an individual to file a complaint against you with a quasi-judicial tribunal (a formal, court-like process)
• Does not require a feedback system for public complaints thus denying an opportunity for change
• Does not tell you HOW to avoid discrimination; only that you must
• Does not direct you to create specific programs, policies and procedures
• Does not provide for inspectors to check for compliance
• Is vague and open to wide interpretation
• Accomplishes its goals with the use of penalties
• Is reactive

Learn don’t litigate!

Andrew Lawson
www.learndl.ca

NOT Workplace Harassment

This disturbing message was delivered to me, just last week, by a manager who had just completed my seminar on workplace harassment prevention:

“After learning all this, Andrew, I am afraid to manage my employees anymore. It seems like any discipline I impose or any constructive criticism I offer can be construed as harassment and will be used against me by an employee. This new law really ties my hands as a manager of people.”

Have you heard yourself expressing exactly the same concerns? Are your managers and supervisors afraid to manage for fear of reprisal by an employee? Any regulatory scheme—like the changes under Bill 168—often has the unfortunate side effect of causing the people affected by it to feel disempowered.

Let’s take look at what is NOT workplace harassment.

Harassment is defined as being a course of vexatious comment or conduct that, among other things, you ought to know is unwelcome. Vexatious means, to be annoying or distressing.

Workplace Violence and Harassment: Understanding the Law
explains that the normal duties of a supervisor do not constitute harassment, even when the actions result in unpleasant consequences for the employee. It is not harassment when a supervisor assigns employees to duties, evaluates performance, enforces workplace policies or imposes discipline as long as he/she does so respectfully and fairly.
You are entitled to have disagreements with your employees as well as having opposing points of view; this does not constitute harassment.

The common law concept of employer prerogative, or right to manage, has been upheld in human rights tribunal decisions. In one such case the tribunal clarified the employer is legally entitled to manage the workforce and to utilize processes, procedures and tools to accomplish its objectives. In this particular case, the employee complained that his supervisor was using a “work log” to discriminate against him because of his disability and objected to its use. The Tribunal agreed that the employee had every right to disagree with management procedures and to discuss those disagreements with the employer. However, “at the end of the day an employee needs to work in accordance with rules and practices as established by his employer.”

Managers attending my workplace harassment prevention workshops often express concern about the level of control they are legally permitted over the activities of their workers. I am frequently asked by workshop participants about the extent to which a manager can control socialization in the workplace, especially where that socialization means that employees are not doing their work.

The case cited above addresses this issue in terms of management rights. The employee in this case also complained that he was being harassed because his supervisor told him he spent too much time talking with his coworkers instead of doing his work. The Tribunal made it clear that where management has a perception that a worker is not completing work as assigned, the employer has the right to raise the issue with the employee.

This case contains an interesting detail of particular interest to managers who feel harassed by anti-harassment policies. The Tribunal heard evidence that the supervisor in this case was coached because she needed to improve her approach when talking with employees about their performance. Her lack of interpersonal skills however, did not constitute harassment. So, you’re allowed to be less than perfect without being guilty of harassing your employees.

The message—
Just because an employee accuses you of harassment doesn’t mean you are guilty. Employees have the right to raise concerns and to have them addressed via due process. Try to view the complaint process as a perfect venue for the exchange of ideas toward creating a more respectful workplace.

Human Rights on Vacation

I am on a holiday in Montreal and delighted to see the city blanketed with banners announcing “International Day Against Homophobia.” A visit to the website below reveals an amazing arrary of events being held in high schools and city streets from St. John’s to Vancouver, places in between and all around the world!
The information on the website speaks for itself. Enough said.
Happy Anti-Homophobia Day.

http://www.homophobiaday.org/default.aspx?scheme=3282

JUNE 15 IS 24 BUSINESS DAYS AWAY!

 HAVE YOU TOLD YOUR EMPLOYEES?

I got a call the other day from a relieved client. She and her management team have, after months of hard work, put the finishing touches on their new workplace harassment and violence policies in compliance with Ontario’s Bill 168. The new law requires all Ontario employers to have these policies in place on or before June 15.

 My client was proud to report she had posted the new policies in prominent places throughout the workplace as well as made them available to employees online via the company intranet.

 “Whew! We got it all done before the deadline.”

 “Great,” I said. “When are you holding the staff training sessions?”

 “Staff training? But we had training earlier this year. You conducted it. Remember?

 Of course I remembered. “That training informed you and your managers what YOU had to do to get ready for Bill 168— the violence risk assessment, reporting procedures, new policies and programs . . .”

 “And we’ve done all that. Now you’re saying we need more training? Staff training?

 “Absolutely,” I explained.  “The bill is very clear,” I paraphrased the law:

 “An employer shall provide a worker with information and instruction that is appropriate for the worker on the contents of the policy and program . . ..

 Information and instruction—that means training. And different levels of training depending on what is “appropriate” for individual employees or groups of employees.

 Have you set aside training times to provide your employees with “information and instruction?”

 The new law gives you 24 business days to get it done. Get in touch with a training provider today.

R U Engaging Your Employees?

The Ontario Occupational Health & Safety Act (OHSA) as amended by Bill 168 and the Accessibility for Ontarians with Disabilities Act (AODA) have created a high demand for professional caliber workplace training services.

 There is training and then there is engaging training. I know that employees don’t line up outside in the cold to get tickets to my training events. Most employees feel they are being punished when they are scheduled to attend harassment prevention workshops. And maybe they are—I am very often asked to provide training following an incident where a worker’s human rights have been abused.

 While setting up for a recent workshop I overheard a participant remark, “we have been targeted, that’s why we’re here.” Because one person often reflects the sentiments of the group, I knew I had my work cut out for me with this particular group and that I needed to engage these people and get them to talk to me about what was going on. Have you heard the expression, “be careful what you ask for?”

 Talk they did. The details of what they told me are, of course, confidential. The point is I realized from the outset that I needed to toss out my prepared agenda and “wing it” with this group in order to gain their confidence and conclude the session with a positive message the participants could take away with them. Before the end of the workshop participants had replaced defiant glares with smiles and nods of agreement and understanding. I saw the defensive body language disappear as the participants realized I really was there to help them and not to lecture them.

 The overwhelmingly positive feedback participants provided at the conclusion of training informed me my decision to “wing it” was the right one.

 Read about a similar experience by my good friend and colleague

 Jill Malleck:

http://jillmalleck.wordpress.com/2010/05/04/mindfulness-when-training/

 Are you engaging employees during training or simply delivering information?