Employee Absenteeism and the Duty to Accommodate. November 25, 2014 Lisa Goodfellow and Laura Cassiani

Size: px

Start display at page:

Download "Employee Absenteeism and the Duty to Accommodate. November 25, 2014 Lisa Goodfellow and Laura Cassiani"

Justin Morton
6 years ago
Views:

1 Employee Absenteeism and the Duty to Accommodate November 25, 2014 Lisa Goodfellow and Laura Cassiani

2 Agenda 1. Identifying types of absenteeism 2. Managing blameworthy absences 3. Managing disability-related absences 4. Frustration of contract 5. Practical tips for avoiding liability 6. Q&A

3 Attendance Management The need to monitor the absences of employees who are regularly absent from work is a bona fide occupational requirement in light of the very nature of the employment contract and responsibility of the employer for the management of its workforce. SCC in Honda Canada Inc. v Keays

4 Absenteeism Culpable Within employee s control Pattern or suspicious absences Lateness Non-culpable or innocent absenteeism Illness or injury related Statutory leaves of absence Long term, intermittent/sporadic, excessive

5 Managing Culpable Absenteeism Progressive discipline Just cause rules apply Clear expectations Condonation Consistency Proof Contextual approach Proportionate response

6 Managing Innocent Absenteeism Counsel, assist and advise Underlying disability? Related to recurring common/temporary ailments? Duration of the absence? Planned or sporadic? Can lead to termination but CAUTION comply with human rights obligations

7 Managing Innocent Absenteeism 1. Is there an underlying disability? Jarrold v Brewers Retail Inc. (2014 HRTO 1070) 2. Has the employee asked for accommodation? 3. If so, what is that accommodation? 4. Is there sufficient medical information to substantiate employee s claims? 5. Can you accommodate without undue hardship? 6. Obtain recent, up to date information

8 Undue Hardship Relevant factors: Costs Interchangeability of the workplace Health and safety Nature of the employee s position and skills Not relevant: Morale Convenience Customer preferences

9 Forms of Accommodation Modified schedule Modified position or duties Modified rules with respect to reporting absences Access to EAP or other forms of support Temporary vs. permanent accommodations

10 Desormeaux v. Ottawa - Undue Hardship & Excessive Innocent Absenteeism Facts: Bus driver suffered from migraines, other ailments causing absenteeism Absent 365 full days, 24 part days in 9 years Dismissed for absenteeism; union grieved Award: Duty to accommodate not met; Employee was not an excessive drain on the backup driver system Employer did not fully explore all possible accommodations including non-driving positions

11 Attendance Management Programs: Elements 1. Distinguish types of attendance issues (i.e., culpable, non-culpable, disability-related, statutory leaves, etc.) 2. Clear rules and expectations with respect to reporting absences, tardiness 3. Reasonable standards and threshold for AMP 4. Consistently applied yet flexible

12 Attendance Management Programs: Elements 5. Comply with all legal requirements 6. Consequences for continued absences 7. Process for management and assisting employees to improve attendance 8. Requirements for medical documentation to substantiate absences

13 The End of the Sick Note? Employers should encourage workers to stay home when sick not require sick notes which has a discouraging effect Scott Wooder, MD President Ontario Medical Association January 7, 2014

14 Keays v Honda Canada Inc. Valid to monitor employee absences; According to the SCC, Not all monitoring methods may be considered non-discriminatory in every context. May include: Requiring a doctor's note for each absence Seeking semi-regular updates from an employee's physician Checking in with the employee directly, or requiring doctors' notes only when the number of absences exceeds the expected number within a given time frame.

15 Dismissal Can employee meet reasonable attendance standards in foreseeable future? If underlying disability, has the duty to accommodate been discharged? Consider absenteeism record Attendance expectations must be reasonable

16 Burden of proof is high (cont d) Absences have been consistently addressed and not condoned Accommodation not required (no underlying disability) or accommodation is not possible (undue hardship) Progressive coaching provided with warnings of consequences of failure to bring attendance up to reasonable level

17 Frustration of Contract No reasonable likelihood that the employee can return to work within a reasonable time The employee may return but is only capable of returning to work that is radically different than originally agreed No reasonable likelihood that the employee can maintain regular attendance in the foreseeable future, even with accommodation

18 Frustration of Contract: Considerations 1. Terms of employment contract 2. Provision of paid sick leave 3. Nature of position (unique?) 4. Expected length of employment (indefinite vs. fixedterm) 5. Length of service 6. Nature and duration of the illness or injury KEY 7. Length of absence

19 Potential Liability? 1. General damages for breach of human rights legislation trending upwards 2. Lost wages Fair v. Hamilton-Wentworth DSB 3. Damages for wrongful dismissal-notice 4. Mental distress 5. Reinstatement 6. Other remedies (i.e. training, policy development)

20 Absenteeism and The Duty to Accommodate: Summary 1. Have an Attendance Management Policy in place 2. Communicate attendance expectations 3. Consistently apply AMP 4. Distinguish between culpable and non-culpable and manage accordingly

21 Absenteeism Management: Summary 5. Reasonable requests for medical evidence 6. Consider possible accommodations 7. Review personnel rolls to identify those on lengthy leaves, consider possible accommodation or frustration 8. Apply progressive discipline where appropriate

22 Questions?

23 Nora to insert thank you slide she has on her computer

The Hydro-Québec Decision: Restoring Balance to the Accommodation Analysis INTRODUCTION FACTUAL BACKGROUND. FTR Now. Date: July 22, 2008

FTR Now The Hydro-Québec Decision: Restoring Balance to the Accommodation Analysis Date: July 22, 2008 INTRODUCTION Following on the heels of its recent decisions in McGill University Health Centre and