Attendance Management: Applying and adjusting the rules for employees with mental health issues

Within certain limits, employers have the right to manage employee attendance, set standards, and control excessive absenteeism. However, when an employee’s absenteeism is the result of a mental disability or mental health problem, special challenges arise. What rules govern where attendance management programs are applied to employees suffering from a mental health problem? What modifications, if any, to such programs must be made in order to avoid claims that the program or policy is discriminatory, and to accommodate employees with a mental health disability? Lancaster’s panel of experts will address these questions, and others, including:

• • Recognizing when mental illness may be a factor in absenteeism: What are the most common mental health concerns that have been recognized as disabilities necessitating an accommodative approach to attendance management? When will conditions such as “stress” or “anxiety,” amount to a “disability?” How can employers recognize when mental illness may play a role or be a factor in an employee’s excessive absences? What signs or symptoms may be present where an employee’s absenteeism is caused by a mental health issue or mental health disability?

• • The duty to inquire and the duty to disclose: What is the extent of the employer’s duty to inquire into an employee’s mental health if it suspects that the employee may be suffering from a mental health issue which is impacting his/her attendance? At what stage in the process should such an inquiry be made, and by whom? How can the subject be brought up? How should employers deal with the issue of denial in the face of evidence to the contrary? How does a delay in disclosure or refusal to disclose affect rights and obligations in the context of an attendance management program?

• • Medical information and privacy: How much medical information is required/can the employer seek, and what type of medical documentation will suffice? Must information about diagnosis and treatment be provided? Is medical information from a family physician sufficient, or must the employee provide information from a psychiatrist or other specialist?

• • Modification of the attendance management plan: What provisions should be made in attendance management policies for employees with mental illnesses in order to meet the employer’s duty to accommodate? When can disability-related absences be counted? What adjustments are advisable/required when communicating attendance standards to employees? When will monitoring and counselling of employees under an attendance management program be considered harassment? Are adjustments or modifications are necessary in this regard where employees may have mental health issues that make them more vulnerable to criticism?

• • Undue hardship and attendance management: At what point will accommodation of an employee with a mental disability constitute an undue hardship for an employer? When can an employee with a mental disability be discharged for non-culpable absenteeism? Do special rules apply where the attendance problem is due to an addiction? When will accommodating an employee’s relapses or chronic mental health problems reach the point of undue hardship?

• • Last chance agreements and other conditions: What conditions can an employer impose on an employee whose attendance problems stem from a mental health issue? Can an employer require that an employee undergo ongoing counselling or other treatment? Periodic reporting by the employee’s physician?