April 11, 2017

Attendance management programs have become increasingly common in workplaces across Canada, yet they remain contentious and are often the subject of litigation. In this session, experienced labour lawyers will identify the key elements that attendance management programs must contain to be compliant with relevant legislation and collective agreement rights. Topics to be addressed include:

  • Reasonable policies and programs: Does arbitral caselaw generally recognize the creation of an attendance management policy as a reasonable exercise of management rights? Does the answer differ where the applicable collective agreement contains detailed provisions regarding sick leave and accommodation of disabilities? What elements must a unilaterally-imposed attendance management policy contain if it is to withstand arbitral scrutiny for reasonableness? How should threshold levels of attendance be set so as not to be arbitrary or otherwise unreasonable? Is it advisable to negotiate collective agreement provisions that expressly address attendance management? Why or why not? What are some examples of attendance management clauses that parties have included in collective agreements? What is the scope of an employee’s entitlement to union representation in an attendance management program?
  • Statutory floors of protection: Does human rights legislation prohibit employers from counting absences due to a disability for the purposes of an attendance management program? How should attendance management policies and programs deal with absences due to family obligations, such as childcare or eldercare, in light of the developing caselaw on “family status” protection in human rights legislation? Aside from human rights legislation, what other legislation must attendance management policies take into account?
  • Medical information and privacy: What medical information may be required from employees in an attendance management program? Should medical certificates be required for all absences once an employee has reached the threshold for enrolment? As part of an attendance management program, should human resources personnel seek permission to contact and communicate with the employee’s doctor for updates on the employee’s medical status? What steps must employers take to safeguard the confidentiality of employee medical information received pursuant to an attendance management program? When, if ever, will communication with an employee regarding medical information be considered harassment?
  • Dismissal: When can an employer dismiss an employee for non-culpable absenteeism? What constraints are there upon an employer in discharging an employee for innocent absenteeism (e.g. benefit loss, notice, etc.)?