Absenteeism Management

By: J. Geoffrey HowardPartner, Gowling Lafleur Henderson LLP

[email protected]

Absenteeism Management

1. A few statistics

2. Absenteeism at work and legislative protections

3. Absenteeism managementa) Involuntary absenteeism

b) Voluntary absenteeism

Absenteeism Management

1. A Few Statistics

A FEW STATISTICS1

Rate of absenteeism among full-time workers, 2000 to 20111

Days lost per worker during the course of the year

TotalIllness or disability

Personal or family obligations

Days

2000 8.0 6.7 1.3

2001 8.5 7.0 1.5

2002 9.1 7.4 1.7

2003 9.2 7.5 1.7

2004 9.2 7.5 1.7

2005 9.7 7.8 1.8

2006 9.7 7.6 2.1

2007 9.9 8.1 1.8

2008 9.7 7.9 1.8

2009 9.5 7.8 1.7

2010 9.1 7.4 1.7

2011 9.3 7.7 1.6

1Statistics Canada, Work Absence Rates, 2012

Rate of absenteeism among full-time workers by province, 20111




Province Days

Newfoundland and Labrador 10.2 8.5 1.8

Prince Edward Island 9.9 8.3 1.5

Nova Scotia 10.8 9.0 1.8

New Brunswick 10.8 9.2 1.7

Quebec 10.8 9.3 1.5

Ontario 8.3 6.6 1.7

Manitoba 10.2 8.2 1.9

Saskatchewan 11.0 8.8 2.2

Alberta 7.9 6.3 1.6

British Columbia 9.9 8.3 1.6


A FEW STATISTICS1

Rate of absenteeism among full-time workers by presence of children, 20111




Days

With children 9.4 7.4 2.1

Without children 9.2 7.9 1.4


A FEW STATISTICS1

2. Work Absenteeism

• An employee's fundamental obligation to perform his or her work

• The employee works “under the employer's authority and supervision”

• Related obligation to report absence, provide medical information

• Sick pay/Disability benefits are not mandated by legislation

• The employer's right to manage absenteeism and apply sanctions• Supreme Court of Canada has recognized the right to do so

a) Employee's obligationsWORK ABSENTEEISM2

• Voluntary

• Involuntary

b) Types of absenteeismWORK ABSENTEEISM2

Legal protections

•Protection under provincial legislation• Illness

• Employment Standards • No right to sick days or sick/disability pay• Annual Vacation• Various personal leaves (see below)

• Human Rights• Disability: duty to “accommodate”• Does not cover absence due to minor ailments

c) Employee's right to be absentWORK ABSENTEEISM2

Legal protections•Protection under provincial legislation

• Family or parental reasons• Employment Standards

• Pregnancy/Maternity and Parental Leave

• Compassionate Care Leave (up to 8 weeks)

• Family Responsibility Leave (BC only - 5 days per year)• “care, health or education” of child or care or health of other family

member

• Bereavement Leave (BC only - 3 days on death of family member)

• Human Rights• Marital Status

• Family Status

c) Employee's right to be absentWORK ABSENTEEISM2

Absences for family reasons

At the federal level

• The Canadian Human Rights Act

• Interpretation of “family status”

• Case law: • Johnstone v. Canada Border Services, DTE 2010T-750

(CHRT) – confirmed by the Federal Court in Canada (Attorney General) v. Johnstone, 2013, FC 113

• Seeley v. Canadian National Railway, 2010 CHRT23

WORK ABSENTEEISM2

c) Employee's right to be absent

Absences for family reasons

In British Columbia and Alberta

• Human Rights Code (BC) and Human Rights Act (AB)

• B.C. case law: • Heath Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (CanLII)Whether particular conduct does or does not amount to prima facie discrimination on the basis of family status will depend on the circumstances of each case. In the usual case where there is no bad faith on the part of the employer and no governing provision in the applicable collective agreement or employment contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or condition of employment imposed by an employer results in a serious interference with a substantial parental or other family duty or obligation of the employee. I think that in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case.

WORK ABSENTEEISM2

c) Employee's right to be absent

• Group insurance• ESA leaves require continued benefits during ESA leaves• Human rights leaves do not (subject to language of policy)

• Reinstatement of employee• ESA – to the job if it exists or a comparable job if it does not• Human Rights leaves: Subject to duty to accommodate to

the point of undue hardship

• Seniority• ESA expressly states inactive employment on ESA leaves

included in calculating period of service

d) Employer's obligations during the employee's absence

WORK ABSENTEEISM2

3. Absenteeism Management

• Limits of absenteeism management: • Employee's right to privacy re private life and physical

well-being

- VS -• The employer's right to know:

• Duration of absence• Limits applicable to the employee

• Management methods in cases of voluntary and involuntary absence• Involuntary absenteeism: administrative approach• Voluntary absenteeism: disciplinary approach

ABSENTEEISM MANAGEMENT3

• Two types of involuntary absenteeism• Long-term absenteeism• Chronic absenteeism

• Cases in which involuntary absenteeism may warrant dismissal• Criteria:

1. High rate of absenteeism compared with other employees (long-term absence or excessive chronic absenteeism)

2. No accommodations can be made without undue hardship, or maintaining accommodations becomes an undue hardship

3. Low probability that the employee will return to work in the reasonably foreseeable future after lengthy absence

a) Involuntary absenteeism ABSENTEEISM MANAGEMENT3

• Legal basis of the obligation to provide accommodation• Human rights

• S. 11• Recognized in case law that the obligation to provide

accommodation is required in respect of all grounds of prohibited discrimination

• Substantive and procedural obligation

• Individualized accommodation required

ABSENTEEISM MANAGEMENT3 A) INVOLUNTARY ABSENTEEISM

• Exception to the obligation to provide accommodation: bona fide occupational requirement (BFOR)• A distinction, exclusion or preference based on the aptitudes

or qualities required by a given job

• Conditions for demonstrating a BFOR according to the Supreme Court of Canada:• Purpose of standard is rationally connected to the performance

of the work• Honest and good faith belief that the standard adopted is

necessary to achieve a legitimate goal associated with the work• Standard reasonably necessary and cannot be accommodated

without undue hardship


• Limits to the obligation to provide accommodation• Undue hardship

• Factual case-by-case analysis• “Undue” hardship implies that a certain amount of hardship is

acceptable• Factors in evaluating the undue nature of the hardship:

• Financial cost

• Outside sources of funding

• Health and safety

• Fundamental change to the work contract

• Size of the company

• Impact on other staff


• Examples of accommodation during illness:• Keep the employee's position open• Distribute employee's tasks and duties to others• Ensure a gradual return to work

• Examples of accommodation due to family status:• Flexible scheduling• Leaves of absence to care for family members• Providing access to alternative work arrangements


• Examples of accommodation upon ill employee's return:• Purchase of tools and equipment • Changes to the work schedule• Changes to the tasks performed• Transfer to another position better suited to limitations• Changes to the workplace


• Employee's obligations• Provide required information• Cooperate to reach an acceptable compromise (e.g.

work part-time)• Entitled to reasonable accommodation not perfect

accommodation

• Facilitate the implementation of the accommodation • Any complaint may be rejected if the employee refuses

reasonable accommodation


• Recommendations• Take preventive measures to avoid absence• Analyze each request for accommodation

• Fulfil the procedural requirement

• Be familiar with common accommodations• Ensure accommodation options are individualized

• Have the employee assessed by an expert if appropriate

• Analyze the criteria associated with the concept of “undue hardship” before terminating the employee


• Why take a disciplinary approach?• To remedy or correct misconduct• To respect and maintain the loyalty of other, more

conscientious, employees• To be able to defend your decisions in court, if

necessary

b) Voluntary absenteeismABSENTEEISM MANAGEMENT3

• Different types of disciplinary measures• Verbal/written warning• Suspension without pay (short- or long-term)• Dismissal (ultimate sanction)

ABSENTEEISM MANAGEMENT3 B) VOLUNTARY ABSENTEEISM

• Important guidelinesProgressive disciplinary measures

• Disciplinary measures should be applied in a progressive manner, since the aim of the exercise is to correct misconduct and restore a viable working relationship

• Heavier sanctions as problems repeat or get more serious

Only one disciplinary measure per case of misconduct

• The employer cannot sanction an employee twice for the same instance of misconduct


• Important guidelinesThe disciplinary measure must be in proportion to the misconduct and the context of the employee’s history

• An employee can be disciplined only if he or she has committed an act which, in itself, requires disciplinary measures

• The employee’s individual circumstances must be considered when assessing the appropriate discipline

• Equal is not always fair


• Important guidelinesTake attenuating or aggravating circumstances into account

• Attenuating circumstances:


• Seniority• Clean disciplinary record

• Isolated incident• Absence of clear rules or

policies

• Feelings of remorse• Provocation

• Personal circumstances (marital problems, illness,

substance abuse)

B) VOLUNTARY ABSENTEEISM

• Important guidelinesTake attenuating or aggravating circumstances into account

• Aggravating circumstances:


• History of disciplinary measures

• Lack of seniority• Premeditation/Intent

• Repeated misconduct• Refusal to assume

responsibility for the misconduct, or lack of

remorse

• Clear understanding of wrongful conduct

• Violation of a clear company rule or policy

• Consequences of the misconduct

B) VOLUNTARY ABSENTEEISM

Thank You

montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london

J. Geoffrey HowardPartnerTel: 604 891-2279Email: [email protected]

Absenteeism Management

Law

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