Attendance Management Essentials: Upholding rights, enforcing obligations

Attendance management programs (AMPs) are frequently established by employers to deal with excessive absenteeism and to provide support to employees who are having difficulty maintaining regular attendance. However, a large body of caselaw has arisen confirming that such programs must be properly designed and administered in order to ensure compliance with human rights and privacy legislation, and with employees’ rights under a collective agreement. In this webinar, experts will review current law and practice around AMPs, highlighting the key considerations that adjudicators will take into account in determining whether a program is legally valid, and providing practical guidance to help navigate disability accommodation, privacy, and other issues. Topics to be addressed include:

• Reasonableness and management rights: What elements must a unilaterally-imposed attendance management program/policy contain if it is to withstand arbitral scrutiny for reasonableness? How should threshold levels of attendance at each stage of the program be set so as not to be arbitrary or otherwise unreasonable? What is the proper role of managerial discretion in administering an AMP? How should attendance management meetings be conducted, and what are the “best practices” in this regard? Is an employee entitled to union representation at an AMP meeting?
• Human rights, the duty to accommodate, and other statutory protections: Is it discriminatory to include absences due to a disability in an AMP? To what extent are employers required to tolerate absenteeism as part of their duty to accommodate? How should AMPs deal with absences that are related to family obligations, such as childcare or eldercare, given “family status” protection under human rights legislation? When drafting and applying an AMP, what allowances, if any, must be made for emergency and other statutory leaves under employment standards legislation?
• Medical information and privacy: What is the scope of the medical information that may lawfully be required from employees in an AMP? Can medical certificates be required for all absences once an employee has reached a certain threshold within an AMP? What steps must employers and unions take to protect the confidentiality of medical information?
• Dismissal for innocent absenteeism: When can an employer dismiss an employee for non-culpable absenteeism pursuant to an AMP? If the employee has a disability, what evidence will be required that the employer has provided accommodation to the point of undue hardship? Can the employer dismiss the employee if dismissal affects the employee’s entitlement to disability benefits?