ISSUES:
The implementation of an attendance management policy can be an effective way to remedy workplace absenteeism. However, the right of employers to demand that their employees attend work is circumscribed by employees' rights to be dealt with reasonably and to have their disabilities accommodated to the point of undue hardship. This workshop will examine the tests adjudicators apply in assessing the legal validity of an attendance management program and will help you to navigate human rights and privacy issues when negotiating and responding to attendance management issues in the workplace.
Establishing an Attendance Management Program:
- In what circumstances are attendance management programs appropriate and what elements do they typically contain?
- What factors will arbitrators generally consider in determining whether an attendance management policy is valid? Are policies that set threshold levels of absenteeism (beyond which an employee can be monitored and warned about his or her absenteeism) permissible? How should these threshold levels be set? Is average employee attendance an acceptable threshold? Are pre-defined disciplinary measures permissible?
- What conditions may be imposed by attendance management programs? Abstinence? Counselling? Treatment?
- How should the attendance management policy be communicated to employees?
- Can statutory leave days provided under employment standards legislation be counted as absences under an attendance management policy? What about absences resulting from a workplace injury for which workers' compensation benefits are payable?
- How should attendance management programs be drafted to avoid conflict with a collective agreement requirement of just cause?
Medical Information:
- What provisions should be included in an attendance management policy requiring employees to produce medical certificates and medical information?
- How should the policy address the requirements to maintain the confidentiality of employee medical information? With whom can the employee's medical information be shared?
- In the implementation of an attendance management program, can the employer require employees to produce a medical note in all cases after they surpass a defined level of absenteeism?
Culpable versus Non-Culpable Absenteeism and the Duty to Accommodate:
- What distinctions should attendance management programs make between culpable and non-culpable conduct (especially where, as with absenteeism due to alcoholism, the conduct may be a hybrid of both)?
- To what extent can an employee expect accommodation of restrictions on his or her availability due to family obligations or religious reasons?
- What steps should employers take to inform employees of their right to request accommodation of a disability?
- How can an attendance management policy that focuses on non-culpable absenteeism achieve the balance of providing for "progressively escalating responses" while not being, in essence, punitive?
- Is it discriminatory to provide a warning letter to an employee about excessive non-culpable absenteeism and potential consequences? How should such letters be crafted?
Discharge and Discipline:
- As a term of the contract, employees are expected to perform the essential duties of their job. At what point can employers take the position that, due to excessive absenteeism, workers are no longer meeting this expectation?
- When can an employee be discharged for non-culpable absenteeism? At what point is "undue hardship" reached?
- What procedures does an employer have to follow – e.g. notice – prior to discharging an employee for excessive absenteeism?
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