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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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