Legal implications for people with developmental disabilities and their families from Bill 148
Bill 148 – Implications for People with Developmental Disabilities and their Families
Media reports regarding Bill 148, the Fair Workplaces, Better Jobs Act tend to focus on the impact of this proposed legislation on large multinational employers for whom the rise and fall of profit-margins and layoff of workers are “just business as usual.” So, it is understandable that many families are completely unaware that Bill 148 could apply to them. The unfortunate reality is that families who engage workers to provide supports to a loved one with a disability stand to suffer most from the sweeping changes proposed by Bill 148.
Families as Vulnerable Employers – Individualized Funding Use in the DS Sector
Bill 148 was introduced in June 2017 to protect “vulnerable workers” in Ontario. The proposed legislation casts a broad net, treating all employers the same, even if certain of those employers are more vulnerable than the workers they employ. This one-size-fits-all approach will have devastating effects for individuals and families in the Developmental Services Sector (“DS Sector”).
As mentioned in recent news releases form OASIS and Community Living Ontario, Bill 148 will serve to increase costs for all DS Sector Agencies, and therefore indirectly decrease the agency based supports available to people with disabilities. However, families may also be directly impacted by Bill 148 as “employers” when they use individualized government funding to engage workers. The changes of greatest significance to families include:
- A new prohibition on mischaracterizing workers as independent contractors when they are actually employees, which will put families at risk of liability to fines under the Employment Standards Act, 2000;
- Burdensome scheduling restrictions that come with new costs related to shift cancellation pay and on-call pay, which will significantly undermine the flexible work arrangements that are crucial to meeting the changing needs of people with developmental disabilities;
- Increased public holiday pay and vacation pay, which will directly reduce the number of support hours a family can afford;
- New personal emergency leave obligations, including two days of paid leave per employee, which will result in an increased incidence of absences without advance notice and associated hardship for families, as well as reduction in supports due to increased costs; and
- Increases to the minimum wage that could result in 25% reduction in the number of hours of support many families will be able to budget using individualized funding.
These changes pose challenges to many employers, but none will suffer the immediate, negative and intensely personal consequences that families will experience if these proposals are passed in their current form.
Furthermore, unlike most employers, families cannot simply deal with these concerns by cutting costs or passing expenses on to customers. Rather, families will need the Ontario Government to provide increased individualized funding to cover the actual costs of engaging workers, including the new costs introduced under Bill 148. Until such funding is made available, many of the approximately 40,000 families in Ontario receiving individualized funding, such as Passport and Special Services at Home, will have to choose between complying with the law and supporting a loved one with a disability.
Transition to Real Work for Real Pay – Bill 148 Barriers to Competitive Employment
In addition to the implications of Bill 148 for individuals and families related to employing workers, Bill 148 also includes proposals that impact people with developmental disabilities as employees. The DS Sector is transitioning away from simulated work in sheltered settings, and Bill 148 gives the force of law to this transition by eliminating the existing sheltered work exemption – few would dispute that this is progress. The way of the future is for people with developmental disabilities to be supported in individualized and inclusive community based activities, which for many will include real work for real pay. Unfortunately, Bill 148 may also create unintended barriers for people with developmental disabilities who wish to pursue competitive employment.
Bill 148 eliminates the existing on-the-job training exemption through which many people with developmental disabilities could otherwise receive short-term, curriculum based, and outcomes focused employment preparedness training in real work settings. Under Bill 148 such training programs will only be permissible if provided by mainstream academic establishments such as colleges and universities. This restriction to mainstream academia is contrary to guidance provided by the Ontario Government in relation to training for people in the DS Sector in 2016. It will also have an adverse, and discriminatory impact on individuals with developmental disabilities for whom these institutions may not be accessible for disability-related and financial reasons, and for whom an individualized approach to on-the-job training may be more appropriate. This is a matter of human rights and equality. The elimination of the on-the-job training exemption must be reconsidered from the perspective of people with developmental disabilities.
Bill 148 Needs to Be Reconsidered with People with Developmental Disabilities in Mind
All told, Bill 148, as proposed, will have a profound impact on the quality of life, health, safety and well-being of many people with developmental disabilities and their families. These implications have not been given due consideration in the legislative process and we urge that the finalization and implementation of Bill 148 be delayed until:
- The implications for individuals with disabilities, families and other “vulnerable employers” have been properly investigated;
- The unintended prejudice to individuals with disabilities and their families that will result from Bill 148 have been mitigated by appropriate amendments and exemptions; and
- Appropriate measures have been undertaken by the Ontario Government to appropriately inform, support and fund families of persons with developmental disabilities to engage workers in a manner that is compliant with their legal obligations under the ESA, as amended by Bill 148, and under any other applicable legislation, without a resulting reduction in support hours.