Ryan Baxter
Ryan Baxter, Lawyer, McInnes Cooper
 

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.

THE ABSENTEEISM PROBLEM

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.

  1. A definition of an “absence” for the purposes of the AMP. The term “absenteeism” refers to many types of absences, and can include those caused by inclement weather, statutory holidays, vacation, illness, family related demands and stresses in the workplace. The AMP should focus on absences that disrupt the workplace and clearly articulate which ones will be “absences” for the purpose of AMP. Scheduled absences like vacation and statutory holiday are generally considered beneficial and are usually easily absorbed by the employer. But unscheduled, habitual absences, late arrivals and early departures can be disruptive to the workplace, an irritant to other employees and carry significant costs and effects on overall productivity.
  1. A distinction between “culpable” and “innocent” absence. One of the most important distinctions an employer must make when dealing with attendance issues generally, and in an AMP specifically, is between “culpable” and “innocent” absenteeism. The AMP should clearly reference this distinction and classification; it’s also helpful if it sets out what’s considered a “non-culpable” absence and the employer’s expectations around it. The distinction is important to how the employer handles the issue: while in either case excessive absenteeism may warrant termination, the employer must take a different approach to each. It’s therefore important to classify the absence up front and clearly articulate how the employer will deal with each.
  • Culpable. “Culpable” absenteeism is absenteeism within the employee’s power to address and correct – and is thus “blameworthy” absenteeism for which the employer can hold the employee responsible and typically leads to a progressive disciplinary response.
  • Innocent. “Innocent” (or “non-culpable”) absenteeism is not fault-based (for example, the employer doesn’t suggest an employee abused sick leave entitlements or otherwise) or blameworthy and typically mandates a non-disciplinary progressive coaching process – precisely what an AMP is intended to handle. But this doesn’t mean an employer is precluded from setting reasonable expectations and taking corrective (though non-disciplinary) action, or can never terminate an employee’s employment. It does mean the steps leading up to and including any termination must not be “disciplinary”. For the employer to terminate an employee on the basis of innocent absenteeism, it must establish: the employee’s absenteeism is extreme when measured against a reasonable standard; and there’s little likelihood of a change in the degree of absence in the future.

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.

  1. A mechanism for absence reporting. The AMP should address, in some detail, both employees’ obligations to report absences and how they should do so, and provide for the employer’s regular review of employees’ attendance records. It’s essential to the evaluation and monitoring of any AMP that the employer implement a system to report and track individual employee absences. Most AMPs provide for employer tracking of paid sick leave, unpaid sick leave, illness during shift, illness in family, and medical appointments where absence from work exceeds one hour.
  1. Thresholds for entry into and progression through the AMP. The AMP should clearly set out a threshold for entry into and progression through a coaching process and detail what each will cover. It’s legally acceptable and practically essential that the employer set an absenteeism “threshold” for entry into the AMP and for moving through each stage of the coaching process up to and including non-disciplinary termination. These thresholds are typically based on a specified number of hours of non-culpable absences with a defined period of time (for example, entry at 67.5 hours of non-culpable absences within any 12 months period). Once the employee enters the AMP by meeting the initial threshold, the employer should initiate a series of coaching sessions, each triggered by the relevant threshold, in which the employer should cover:
  • The impact of absenteeism on the business and potentially on the employee’s job opportunities.
  • The employee’s attendance record, the need for improvement and the fact that regular attendance is a performance expectation.
  • An offer to work with the employee to identify the causes, solutions and resources available to the employee.
  • Agreement on an attendance improvement plan, targets and expectations.
  • The next step in the attendance management process and possible outcomes of continued absences.
  • At the appropriate stage, advice that the employee’s absenteeism has placed his job in jeopardy and failure to improve may result in dismissal.

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.

  1. Preservation of employer discretion. It’s critical that the employer bear in mind its legal obligation not to discriminate and its duty to accommodate under human rights legislation (and any applicable collective agreement) when creating, implementing and enforcing any AMP. If not, it runs the risk that a court, tribunal or arbitrator will find it discriminatory and strike it down. The AMP should preserve the employer’s ability to exercise discretion and deviate from the AMP so it can adjust based on the specific circumstances in each case – and in particular, to ensure it can always meet its duty to accommodate as and when it might arise. A common AMP deviation is not to count absent hours towards the AMP thresholds during a period of disability.

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.

To discuss this or any other legal issue, contact any member of McInnes Cooper’s Labour and Employment Team. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.

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 ryan.baxter@mcinnescooper.com.