Attendance Management Policies:
Balancing attendance and performance expectations
with human rights and privacy concerns

Pre-Conference Workshop
Ottawa

Presented by Lancaster House

►covering employment in both federal and provincial jurisdictions◄

Tuesday, April 10, 2012
Full-Day Interactive Session
9:00 a.m. – 4:00 p.m.

The Westin Ottawa Hotel
11 Colonel By Drive, Ottawa, ON K1N 9H4

• CPD for Members of the Law Society of Upper Canada:
  5.5 Substantive Hours; 0 Professionalism Hours;
  Not accredited for New Members.
• This program has been approved by the Law Society of New Brunswick for 5.5 Continuing Professional Development hours.
• This program has been approved by the Law Society of Saskatchewan for 5.5 Continuing Professional Development credit hours.

Attendance management programs can be a useful mechanism to deal with the problem of absenteeism, but they can backfire if not drafted and implemented properly. Attendance management policies must respect an employee's human rights and must not conflict with the provisions of the collective agreement. In this workshop, Lancaster's panel of experts will work with participants in seeking solutions to the following issues:

• What Makes for a Good Policy? Can the program be set in general terms, or must it provide sufficient discretion to allow for individual employee circumstances to be taken into account? What factors should be taken into account in applying an attendance management policy to an employee? Are attendance management policies a legitimate response to innocent absenteeism? Are incentives for exceptional attendance permissible, and are they effective? Is it disability-based discrimination for an employer to reduce payments after a specified number of absences in a given period? What provisions should be made for medical appointments, emergency leave, elder care or child care?

• What to Include and What to Avoid: How should the policy be drafted to ensure it complies with human rights legislation, employment standards legislation, privacy legislation and the collective agreement? Must the policy distinguish between culpable and non-culpable absences? How should it apply where the absence may be a hybrid of the two (such as absences due to addictions)? Can the absence of an employee on LTD or due to occupational injury be included? Are automatic or deemed termination provisions ever acceptable? What conditions may be imposed by attendance management programs? Abstinence? Counselling? Treatment? Are employers entitled to updates or other information about the counseling or treatment?

• Standards to Set: How should threshold levels of absenteeism (beyond which an employee can be monitored and warned about his or her absenteeism) be set? Should they be sector- or workplace-specific? Is average employee attendance an acceptable threshold?

• Consequences: What are permissible and impermissible consequences of an employee's participation in an attendance management program – for example, can participation be used as a factor to rank employees for such purposes as promotion, layoff, etc.? How should a notice be framed so that it alerts employees to the risk of discharge for innocent absenteeism, and the availability of an employee assistance program, without crossing the line into discipline? Are last chance agreements a permissible response to continuing absenteeism?

• Undue Hardship: When can an employer demonstrate undue hardship resulting from non-culpable absenteeism? What constraints are there upon an employer in discharging an employee for innocent absenteeism (e.g. notice, benefit loss, etc.)?

• Medical Information: What provisions may be made in attendance management programs requiring medical certificates and medical information? What is typically required in attendance management programs in terms of the provision of medical certificates in circumstances of extended absences? Frequent absences? Situations involving patterns of abuse?