Attendance management programs are frequently used by employers to address excessive absenteeism, yet such programs remain contentious and must be properly designed and administered to ensure compliance with human rights, employment standards, and privacy legislation, as well as collective agreement rights. In this session, experienced labour lawyers will explain the key considerations adjudicators take into account in determining whether a program is legally valid and help you navigate human rights and privacy issues when addressing and responding to attendance management issues in the workplace. Issues to be addressed include:
- What elements must a unilaterally-imposed attendance management program/policy (AMP) contain if it is to withstand arbitral scrutiny for reasonableness?
- Should unions and employees be concerned about the amount of discretion an employer has in administering an AMP?
- When will adjudicators find that including absences related to disability or family leave in an AMP is discriminatory?
- Does an employer have a duty to identify whether disability or family status obligations are the reason for an employee’s absences, or must an employee disclose such grounds before the employer’s duty to accommodate is triggered?
- Aside from human rights legislation, what other legislation should be considered when drafting and applying AMPs?
- What medical information/certificates may be required from employees in an AMP? What steps should employers and unions take to protect the confidentiality of medical information received pursuant to an AMP?
- When can an employer dismiss an employee for non-culpable absenteeism? Must the employer give notice or request an updated medical opinion regarding the likelihood of improved attendance? Can the employer dismiss the employee if it affects the employee’s entitlement to disability benefits?
- How should attendance management meetings be conducted? What are some “best practices” for employers and unions in discussing attendance issues with employees?
- What is the scope of an employee’s entitlement to union representation in an AMP? Aside from ensuring proper representation, what can union representatives do to assist an employee in an AMP?