Attendance Management & Accommodation: Controlling absenteeism, respecting rights

Attendance management programs are frequently used by employers to address excessive absenteeism, yet such programs must be properly designed and administered to ensure compliance with human rights, employment standards, and privacy legislation, as well as collective agreements. In this session, Lancaster’s panel of experts will discuss how to balance an employer’s need to ensure attendance at work with employee rights. Issues to be addressed include:

• Establishing a fair program: What are the elements of a fair attendance management program? How should a program distinguish between culpable and non-culpable absenteeism? How can a program set out expectations in general terms while still providing discretion for individual circumstances to be taken into account? It is permissible to set threshold levels of attendance, beyond which an employee may be monitored and warned for absenteeism? If so, how should threshold levels of attendance be set? What exclusions or exceptions must be built in? Should a program have special provisions for absences related to addiction or other disabilities? If so, what kind of provisions are appropriate? What about absences related to family caregiving needs or religious holy days? What about emergency leave? In what circumstances, if any, are automatic or deemed termination provisions acceptable? What aspects of an attendance management program will arbitrators typically find objectionable? Do incentives for excellent attendance or sanctions for chronic absences discriminate against employees with disabilities?
• Recognizing and accommodating disability-related absences: What role should accommodation of disabilities play in an attendance management program? How can an employer strike a balance between the need to ensure attendance at work and the duty to accommodate employees with disabilities? How can a program that focuses on non-culpable absenteeism provide for “progressively escalating responses” while not being, in essence, punitive? How can an employer recognize when disability is playing a role in an employee’s absenteeism if the employee does not disclose his or her disability? What is the nature of an employee’s obligation to reveal the need for accommodation? What happens if an employee only becomes aware that disability is a factor in his or her chronic absenteeism post-discharge? Is it disability-based discrimination for an employer to reduce sick leave payments after a specified number of absences in a given period?
• Requesting medical information and respecting privacy: What type of medical information can an employer request where an employee’s absenteeism is disability-related? Does it matter if the absence is short-term or long-term? When is an employer entitled to reject medical information from a family doctor and require information from a specialist? Are employers entitled to request periodic assessments from an employee’s physician? What about a functional abilities evaluation or an independent medical examination? Are blanket rules about required medical documentation appropriate or should the need for medical information be considered on a case-by-case basis? What should employers and unions do to protect the confidentiality of medical information in their possession?
• Communicating with employees: How should an attendance management program be communicated to employees? What are some ‘best practices’ for approaching an employee who is failing to meet attendance standards? What inquiries are essential in attendance management interviews? What is the scope of representation the union may provide at attendance management interviews? When will monitoring or implementation of steps in an attendance management program be considered harassment?
• Last chance agreements and other conditions: What conditions can an employer impose on an employee whose attendance problems stem from a disability? Counselling? Treatment? Abstinence from drugs or alcohol?
• Undue hardship: At what point can an employer demonstrate undue hardship results from accommodating an employee’s non-culpable absenteeism? Must an employer request an updated medical opinion regarding likelihood of improved attendance prior to discharging an employee for innocent absenteeism? When will accommodating an employee’s drug or alcohol relapses reach the point of undue hardship? When will accommodating a chronic or recurring mental or physical disability result in undue hardship? What constraints are there upon an employer in discharging an employee for non-culpable absenteeism caused by a disability (e.g. notice, benefits, etc.)?