February 03, 2011

The implementation of an attendance management program can be an effective way to remedy workplace absenteeism. However, the right of employers to demand that their employees attend work must be balanced against employees’ rights to be dealt with reasonably and to have their disabilities accommodated to the point of undue hardship. In this audio conference, Lancaster’s panel of experts will examine the tests adjudicators apply in assessing the legal validity of an attendance management program and will help you to navigate human rights issues when addressing attendance management issues in the workplace.

  • The Problem of Absenteeism: How widespread is the problem of absenteeism? What is the average rate of absenteeism in Canadian workplaces? Do studies and decisions distinguish between short- and long-term absenteeism?
  • Establishing a Program: In what circumstances are attendance management programs appropriate and what elements do they typically contain? Which types of attendance management programs are effective, and which are not? What factors will arbitrators consider in determining whether an attendance management policy is valid? What aspects of an attendance management program will arbitrators usually find objectionable?
  • Thresholds: Are policies that set threshold levels of absenteeism (beyond which an employee can be monitored and warned about his or her absenteeism) permissible? How should these threshold levels be set? 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.? Is notice an appropriate element of an attendance management program when its purpose is to alert employees to the risk of discharge for innocent absenteeism, and the availability of an employee assistance program? When is notice deemed to be proper and when is it deemed to be punitive? Is punishment a legitimate component?
  • Conditions: What conditions may be imposed by attendance management programs? Abstinence? Counselling? Treatment?
  • Accommodation: What role should the accommodation of disabilities play in an attendance management program? What distinctions should attendance management programs make between culpable and non-culpable conduct (especially where, as with absenteeism due to alcoholism, the conduct may be a hybrid of both)? How can an attendance management policy that focuses on non-culpable absenteeism provide for “progressively escalating responses” while not being, in essence, punitive?
  • Undue Hardship: When can an employee be discharged for non-culpable absenteeism? At what point can an employer demonstrate “undue hardship”? What constraints are there upon an employer in discharging an employee for innocent absenteeism (e.g. notice, benefit loss, etc.)?
  • Medical Certificates: 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?

This audio conference has been approved by the following:

  • The Law Society of British Columbia for 1.5 Continuing Professional Development hours.
  • The Law Society of New Brunswick for 1.5 Continuing Professional Development hours.
  • The Law Society of Saskatchewan for 1.5 Continuing Professional Development hours.
  • This 1.5 hour program can be applied towards 9 of the 12 hours of annual Continuing Professional Development required by the Law Society of Upper Canada. Please note that these CPD hours are not accredited for the New Member Requirement.