Simon's Megalomaniacal Legal Resources

Ontario Disability Support Program (ODSP) Legal Guide
(20 June 2021)

Chapter 13 - Workfare and Employment Supports

1. Overview
   
2. Workfare for Non-Disabled Adults
   
3. Employment Supports

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1. Overview

Readers may be familiar with the "workfare" and other employment-related duties that are imposed on welfare (Ontario Works) recipients as a condition of eligibility. While disabled ODSP recipients are excused from workfare, it does generally apply to the non-disabled adult members of the ODSP benefit unit, with punitive income support consequences in the event of non-compliance.

"Workfare" participation by these members of an ODSP benefit unit is administered within the local welfare (Ontario Works) program.

Further, ODSP disabled recipients - and any other eligible (disabled) persons - may voluntarily participate in a range of employment and rehabilitation-oriented, ODSP-administered "employment supports" - if no similar rehabilitation-type programs are otherwise available (ie. under other government or private insurance programs).


2. Workfare for Non-Disabled Adults

(a) Overview

Non-disabled adults (spouses and dependent adults) in the benefit unit are - unless otherwise exempt - required as a condition of eligibility to participate in certain employment-related duties in the local welfare (Ontario Works) program [OW Act s.6, ODSP General Reg s.6].

Employment-related duties for ODSP spouses or dependent adults include a general duty to accept and maintain the most remunerative employment available [OW Reg s.28], and to participate reasonably in whatever workfare program is established for them [OW Reg s.29] - assuming that they are physically capable of it. Note that participation in a screening test, assessment or treatment for substance addiction are not included in workfare activities for this purpose - NOR therefore for the purposes of non-compliance sanctions (see below).

Generally readers should review the welfare (Ontario Works) chapter on this issue: Welfare (Ontario Works) - Ch.11: Workfare

(b) Exemptions

The exemptions from these employment-related duties are any of the following [Reg s.6(2)]:

• that the person is otherwise participating in adequate "activities to assist the dependent adult or spouse become and stay employed or increase his or her income from employment";
  
  
• the person is dependent adult single parent with at least one dependent child of their own, or for whom temporary care assistance (under Ontario Works) is being received, and for whom publicly funded education is not available;
  
  
• the person is 65 or older;
  
  
• that the person is a caregiver to a family member "who requires physical assistance or supervision on an ongoing basis because of disability, illness or old age", making participation impractical (as verified by other support providers); or
  
  
• that other "exceptional circumstances" for excusing the person exist.

(c) Non-Compliance

The consequences of non-compliance are similar to those for non-complying members of a welfare benefit unit. They include temporary suspension of the budgetary requirements component and benefits for the non-complying member (see the welfare program, Ch.11, s.7: "Workfare: Non-Compliance").

Drug card eligibility for the person will continue if the person requires it for "a serious illness or serious health condition". The periods of suspension are as follows [Reg s.24(1.1,2)]:

• one month for first non-compliance;
  
  
• three months where there has been any previous non-compliance with any of these duties either under welfare (Ontario Works) or ODSP.

3. Employment Supports

(a) Overview

Persons not required to engage in "workfare" as discussed in s.2 above - and other disabled persons for that matter - may voluntarily participate in the ODSP "employment supports" program if they meet the eligibility requirements.

"Employment supports" are "goods or services provided to a person in order to remove barriers to the person"s competitive employment and assist the person in attaining his or her competitive employment goal" [Act s.2]. Their goal is to "remove barriers to the person"s competitive employment and assist the person in attaining his or her competitive employment goal" [Act s.32(1)]. Generally they entail specific forms of employment-related items and a job-type placement.

The main principles of this program are:

• it is open (assuming eligibility)to non-ODSP recipients as well as ODSP recipients;
  
  
• it is a program of last resort: ie. similar assistance under other programs must be exhausted first;
  
  
• it is directly administered by third party "service providers" under contract from the Ministry;
  
  
• it is funded 50/50 between the federal and Ontario governments;
  
  
• decisions regarding "employment supports" are NOT appealable to the Social Benefits Tribunal, although there is by policy a dispute resolution process established [Act s.21(3)].

(b) Eligibility

"Employment supports" may be provided [Act s.32(2)]:

• to ODSP recipients;
  
  
• where a "person has a physical or mental impairment that is continuous or recurrent and expected to last one year or more and that presents a substantial barrier to competitive employment" and such impairments have been verified by a qualified medical professional [Reg 223/98, s.3].
  
  Note: This latter criteria is very similar to the main income support eligibility definition under the Act [s.4] for a "person with a disability" (PWD). It differs in that:
  
  - the impairment itself need not be substantial;
  
  - a substantial impact on "competitive employment" ONLY grounds eligibility (PWD can be established by substantial restrictions in personal care, community functioning OR employability).
  
  - there is no "addiction exclusion" (see Ch.9: "Persons with a Disability")

Such persons must also [Act s.33]:

• be resident in Ontario;
  
  
• "intend[] to and [be] able to prepare for, accept or maintain competitive employment";
  
  This requirement of "able to ... maintain competitive employment" will make some ODSP recipients nervous as it seems to counter their basic ODSP medical eligibility. However, the ODSP Employment Supports Policy Directive [2.1] on this issue seems to interpret this provision as referring to the applicant's legal ability to work in the country (ie. immigration status), non-incarceration and otherwise to a narrowed goal of "competitive employment" that suits the applicant's handicaps. It would be highly unusual for any participation in employment supports to be held against a recipient in this fashion. Generally such participation is seen as evidence of good faith on their part and assists in establishing their credibility generally.

The following persons are NOT eligible for employment supports [Reg 223/98, s.2]:

• persons receiving welfare (Ontario Works) assistance;
  
  
• persons under 16 years of age.

(c) The Program

. Application

Applications for employment supports participation should be directed to your local ODSP office [Act s.34].

Participants are required to enter into a "competitive employment plan" with the service provider agency [Act s.33, 35(2)].

Full details of the "employment supports" program are set out in the Ministry's Policy Directives on the issue: ODSP Employment Supports Policy Directives

. Elements of Program

"Employment supports" may include the following [Reg 223/98, s.4(1)]:

• employment consultation and planning;
  
  
• employment preparation and training;
  
  
• job placement services;
  
  
• transportation costs related to the above;
  
  
• job coaching;
  
  
• tools and equipment necessary for employment;
  
  
• the services of an interpreter, reader or note-taker;
  
  
• mobility, prosthetic and sense-enhancing devices.

However, the following are expressly excluded from being provided as an employment supports [Reg 223/98, s.4(2)]:

• educational programs in respect of which financial assistance is available under the Ontario Student Assistance Program, and any goods or services necessary to enable a person to attend such a program;
  
  
• educational programs established under the Education Act and any goods or services necessary to enable a person to attend such a program;
  
  
• goods and services available to a person, including home care, community services and attendant services, that are funded by the Ministry of Health, by a local health integration network or by Ontario Health;
  
  
• that portion of the cost of devices and supplies available to a person under the Assistive Devices Program (administered by the Ministry of Health and Long-Term Care) that is paid by the Program;
  
  
• medical, dental and nursing treatment and procedures, including prescription drugs;
  
  
• goods and services that the person’s employer is required under the Human Rights Code to provide;
  
  
• structural modifications to a person’s place of employment;
  
  
• the purchase or modification of a home;
  
  
• the purchase or modification of a vehicle.

. Withdrawal of Employment Supports

"Employment supports" may be withdrawn if the participant:

• loses eligibility (as above),
  
  
• "fails to use" the supports,
  
  
• does not make satisfactory progress towards competitive employment;
  
  
• fails to provide the information necessary to establish eligibility; or
  
  
• uses money granted for purposes other than intended [Reg 223/98, s.7]

Before such withdrawal a "notice of intention" will be provided and there is a dispute resolution process (outside of the Social Benefits Tribunal) [Act s.36].