The employment contract is an exchange of labour for wages and other benefits, so employers are entitled to expect regular ongoing attendance from their employees. But poor attendance (and its evil twin, high absenteeism) is one of the most challenging problems employers face, and absenteeism is one of the biggest drains on workplace productivity and morale. Employers that successfully recognize and actively manage this issue stand to reap huge benefits.
One of the most effective tools to actively manage attendance and reduce absenteeism is a workplace Attendance Management Program (AMP). Here’s a look at AMPs and the five key elements that most AMPs share.
Punctuality and regular attendance are essential attributes of every employment relationship: having contracted for labour, an employer is entitled to rely on its employees to attend work and to perform the tasks for which they were hired. The employer organizes its workplace and provides goods and services to its customers in reliance on this contract. An employee who fails to provide labour on a sustained basis is in breach of her obligations under the employment contract (or collective agreement).
Despite this, poor attendance is one of the most challenging problems employers face – and one with significant impact. According to the Conference Board of Canada’s September 23, 2013 report, private sector employees called in sick 8.2 days/year and workplace absences cost an estimated $16.6B in 2012 – yet only 46% of employers tracked the number of days employees were absent and why. The problem is only getting worse: according to Statistics Canada’s Labour Force Survey, between 1997 and 2012 the average number of days lost per worker per year has significantly increased: in the private sector, from 6.7 days to 8.3; in non-unionized workplaces, from 5.6 to 7.5; and in unionized workplaces from 10.7 to 12.8.
AN ATTENDANCE MANAGEMENT SOLUTION
Given the significant impact of absenteeism on employers’ operations, employers have a legitimate interest in reducing the impact of excessive absenteeism and the right to take active steps to manage it. Employers that do so can reap huge benefits, including a reduced incidence, duration and related costs of absence, as well as reduced management time and increased productivity.
Managing attendance and absenteeism raises a number of challenges for employers, and employers can take a multi-pronged approach to addressing the problem. One of the most effective tools is implementing a formalized Attendance Management Program (AMP) to systematically address workplace absenteeism issues.
An AMP is generally acceptable in the workplace if it sets out: the employer’s expectations for consistent and regular attendance; promotion of wellness; procedures for notifying the employer of absences; and monitoring attendance records. Employers in a unionized workplace have the right to institute a program designed to improve attendance without the union’s endorsement as long as it satisfies the “KVP” criteria (named for the arbitration case in which it was first enunciated): the AMP is not inconsistent with the collective agreement; it is not unreasonable; it is both clear and unequivocal; the employer brings the AMP to the attention of the affected employee(s) before acting on it; and the employer consistently enforces the AMP.
5 KEY ELEMENTS OF ATTENDANCE MANAGEMENT PROGRAMS
Most employer Attendance Management Programs share these five key elements.
Verification of the absence is key to the employer’s ability to accurately classify the absence. And since employees are obligated to provide regular ongoing attendance, the employer has the right to be fully informed of the basis for an employee’s absence and any work limitations or modifications she requires to perform her job duties. It’s imperative that the employer consistently enforce its right to proper information and notification from employees: if an employer allows absenteeism to go unchecked, it is very difficult for it to later assert its rights. It’s helpful to set out in the AMP the employee’s obligation to provide medical information, what information is required, and from whom.
Illness or a medical condition is probably the most frequent reason for absenteeism, and verification might require the disclosure of employee medical information. Employers do have a limited right to access an employee’s medical information, and a corresponding obligation to protect the confidentiality of that information. Where the absence isn’t for a medical / illness reason, the employer is entitled to know the specific cause for the absence, subject to any limitations imposed by privacy or human rights laws, and to verification of that cause.
Employers must document each meeting, consider the employee’s individual circumstances and provide the employee (and the union, if applicable) with a written summary of the outcome.
Employers must be alive to “flags” raising the possibility of an accommodation need when dealing with absenteeism so they can meet their legal obligations. Innocent absenteeism could be related to an employee’s membership in a group protected by human rights legislation. The employer’s duty to accommodate begins when it has been made aware of the need for an accommodation, or the circumstances are such that it ought reasonably to have known of the need for an accommodation. Frequently, it’s during the coaching sessions in the context of an AMP where the employee will disclose a need for accommodation, or there will be “flags” that raise that possibility, and trigger the employer’s duty to accommodate.
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McInnes Cooper prepared this article for information; it is not legal advice. Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2016. All rights reserved.
About the author:
Ryan Baxter is a member of McInnes Cooper’s Labour and Employment Team and practices in the areas of labour and employment, immigration and litigation. He regularly advises and represents clients in all manner of employment matters, including human rights compliance and complaints. You can reach Ryan at firstname.lastname@example.org.