- Attendance / Absenteeism Management (Part I)
- June 11, 2012 | Author: Earl Phillips
- Law Firm: McCarthy Tétrault LLP - Vancouver Office
Whether you call it an Attendance or an Absenteeism Management Plan, or anything else you may come up with, there are a number of legal requirements to meet. This week we look at some of the basics. Next week, we will look at the issues of dealing with disabled employees and getting medical information.
An AMP must be carefully crafted with a clear understanding of the legal rights of employers and of absent employees. It must be consistent with the collective agreement in a unionized workplace. Those who administer the AMP must be well trained. From the outset, the AMP must be clearly communicated and consistently enforced.
Attendance data is the foundation of an AMP. The data must be accurate, comprehensive, consistent and have statistical integrity. Important decisions have to be made about which absences should be excluded in calculating absenteeism. Vacations, statutory leaves and approved leaves of absence should be excluded from the calculation of absenteeism. Absences for legitimate illness or injury, short term or long term disability and workers compensation may be (and we think should be) included.
Management Review and Discretion
While the attendance data is the foundation of the AMP, it must not dictate outcomes. The steps of an AMP should not be applied mechanically. Management must take into account the individual circumstances of employees in the AMP at each step. Discretion and flexibility should be an integral part of the AMP so that management can tailor the introduction or the rate of progression of an employee in the AMP according to the employee’s circumstances.
Each absence should be assessed to determine if it is part of the attendance problem or an isolated event that does not provide an accurate view of attendance and the employee’s ability to improve.
Management must have a rational basis for imposing any particular attendance standard (such as a maximum number of absent days). Any attendance standard must be defensible such that a failure to meet the standard is a reasonable indicator of a problem with attendance.
Duty to Accommodate
An AMP must not impose discipline on employees for non-culpable absenteeism. However, management may bring concerns about non-culpable absenteeism to the employee’s attention through non-disciplinary steps. Management should always inquire about the need for any accommodation.
An AMP must provide flexibility in order to allow the employer to fulfill its duty to accommodate. Medical information should be examined closely and management should avoid making assumptions about an employee’s ability to work or the need for accommodation. An effective AMP will identify true attendance problems; for example, by distinguishing between genuine illness and sick leave abuse.
In appropriate circumstances, an employee may be dismissed for excessive non-culpable or innocent absenteeism. However, the fact that an employee has progressed through an AMP does not itself justify dismissal for non-culpable absenteeism. The decision to dismiss an employee must be based on the specific circumstances of the employee and an evaluation of the duty to accommodate. An employee must always be warned before they are dismissed that they must improve their attendance or face dismissal. Such a warning is not considered disciplinary in itself.