November 22, 2012

Attendance management programs are often adopted by employers in order to remedy workplace absenteeism. However, these programs must not ignore employee privacy rights and the accommodation of employee disabilities. In this audio conference, Lancaster’s panel of experts will examine the tests adjudicators apply to ensure that attendance management programs and last chance agreements do not infringe on employee rights. Issues to be discussed include:

    • Crafting a valid attendance management policy: What are the characteristics of valid policies? Should the program be drafted in general terms, or should it provide sufficient discretion to allow for individual employee circumstances to be taken into account? What factors should be taken into account in applying an attendance management policy to an employee? Can an attendance management program be implemented when an employee is away due to innocent absenteeism? Are incentives for exceptional attendance permissible, or do these incentive programs discriminate against employees who are disabled? Are such programs effective? Can attendance records be used as a factor to rank employees for such purposes as promotion or layoff?
    • Complying with employment-related legislation: How should attendance management policies be drafted to ensure they comply with human rights legislation, employment standards legislation, privacy legislation and the collective agreement? Must the policy distinguish between culpable and non-culpable absences? Should attendance management programs have special provisions relating to absences due to addictions? Can the absence of an employee on LTD or due to workplace injury be included? What provisions should be made for family care absences or emergency absences?
    • Medical information and privacy: What provisions may be made in attendance management programs requiring medical certificates and medical information? Can there be blanket rules about the need to submit medical certificates, or should the need for medical information be evaluated on a case-by-case basis? Can a program require an employee to consent to employer contact with the employee’s physician? What medical information is typically required in circumstances of short-term or extended absences?
    • Setting limits: How should threshold levels of absenteeism (beyond which an employee can be monitored and warned about his or her absenteeism) be set? Should they be workplace-specific? Is average employee attendance an acceptable threshold? Should every day missed by an employee be treated equally under an attendance management plan, or should the nature or reason for the culpable absence be considered? Are automatic or deemed termination provisions acceptable? How should an employer alert an employee that he or she is at risk of discharge for innocent absenteeism without triggering disciplinary procedures? Can an employer reduce sick leave payment after a certain number of employee absences without violating the prohibition on discrimination based on disability?
    • Undue hardship: When can an employer demonstrate undue hardship resulting from an employee’s non-culpable absenteeism? What evidence does an employee need to show that there will likely be a future improvement in his or her attendance record? What requirements are placed on an employer discharging an employee for innocent absenteeism, in terms of notice pay, benefits, etc.?
    • Last chance agreements: When are last chance agreements a violation of the duty to accommodate and when will they be considered to be an implementation of the duty to accommodate? What conditions may be imposed by last chance agreements? Counselling? Treatment? Abstinence from drugs/alcohol? Are employers entitled to medical updates or other information about the counseling or treatment? Can these agreements always be enforced?