October 12, 2011
by Israel Foulon LLP

Excessive absenteeism is a challenge that all employers must face from time to time. Indeed, the consequences of not doing so, or doing so inappropriately, can be significant. Excessive absenteeism decreases productivity and revenue and, when unjustifiable, hurts the morale of dedicated workers and creates a culture of tolerated idleness among undedicated employees.

On a regular basis, we advise our clients of the various strategies they can implement to tackle excessive absenteeism. In this Information Bulletin, we would like to share with you our suggestions for the proper administration of an Attendance Management Program (“AMP”) that, when properly implemented, will assist you in responding to instances of excessive absenteeism.

Attendance Management Programs – What Should be Included?

If your workplace does not presently have an AMP, then consider introducing one to your employees. An appropriate AMP will generally contain the following employer policies:
definitions of acceptable (or “non-culpable”) and unacceptable (“culpable”) absenteeism;

Examples of culpable absences may include lateness (without permission or a good reason); leaving work without obtaining the appropriate permission to do so; not providing a doctors’ note following an absence (when required by the AMP);

Examples of serious culpable absences may include giving an untruthful reason for absence; not punching time cards or leaving without indicating the absence while continuing to be paid; not attending at work for a scheduled shift and providing no notice or justification of non-attendance;

Examples of non-culpable absences may include absences due to illness supported by medical note (when required); absences that were approved according to company policies and procedures; absences supported by legislation when the employee has complied with his/her obligations under such legislation (e.g. emergency leave); absence due to circumstances that could not have been foreseen by the employee (discretion in this category should be applied consistently)

Procedures that must be followed in the event that an employee will be unexpectedly absent (e.g. the employee must bring documentation to support the unexpected absence; the employee must contact his supervisor or the human resources department as soon as practicable, etc.); and

Consequences for employees if they are found to have engaged in excessive culpable absenteeism

Ensuring Your Attendance Management Program is Up-to-Date

Before administering your AMP, ensure that it is up-to-date, has been appropriately distributed, and has been consistently applied to all employees.

Ask yourself the following questions:

When was the AMP last updated?

If the answer to this question is that “it has been a while”, the AMP should be reviewed, updated and dated as the latest revision;
If your workplace is unionized, ensure that the AMP is consistent with the terms of the collective agreement;
Ensure that the AMP does not contravene the Employment Standards Act, 2000 and the Human Rights Code.
How has the AMP been distributed historically?
If the AMP is only distributed at the time of hire or has not been widely distributed in the past two years, distribute the most updated version of the program and have employees sign an acknowledgement that they received the program details.
Has the AMP in place been followed consistently with all employees?

If the answer to this question is “no” and your workplace is not unionized, update and re-introduce the AMP to employees with the message that going-forward, the program will be followed in all circumstances;

If the answer to this question is “no” and your workplace is unionized, discuss the AMP with your union before it is re-introduced to employees.

Administering the Attendance Management Program

Once you have ensured that your AMP contains the appropriate employer policies, is up-to-date, and has been appropriately distributed and has been consistently applied to all employees (or, at least, to the employee with whom you may be experiencing attendance management difficulties), consider taking the following steps to administer the AMP:

Step (1): Prepare for the meeting with the employee to discuss absenteeism.

The individual conducting the meeting should be familiar with and bring to the meeting:

The Attendance Management Program;
Documentation showing when the specific employee last received an updated copy of the attendance management program; and
the employee’s attendance records.

Step (2): Meet with employee to discuss absenteeism.

One purpose of the meeting is to gather information and therefore the initial tone of initial attendance management meetings should be non-disciplinary.

If your workplace is unionized, a union steward or the appropriate union official (as identified in the Collective Agreement) should be in attendance at the meeting.

Ask the employee for details regarding his/her absence(s) to determine whether the absence(s) at issue are culpable or non-culpable/innocent absences. If the absences in question relate to medical issues, the employer is entitled to ask how the illness will impact attendance going forward but is not entitled to ask about the details of the actual illness.

Step (3)(a): Impose progressive discipline as required where culpable absenteeism is found.

In imposing progressive discipline, employers should adhere to the terms of their progressive discipline policies to ensure fairness and consistency in the workplace. Employers should also consider the time that has lapsed between the incident of absenteeism at issue and the date absenteeism was last addressed with this employee. Depending on the duration of time between incidents, the employer may be advised to start the progressive discipline from the beginning with a verbal warning, or to repeat one or two steps.

In general, employers will wish to discipline employees for culpable absences using one of the following disciplinary measures, depending on the severity and frequency of the absenteeism: a verbal warning; a first written warning; a second written warning; or dismissal for cause. Where the contract of employment permits it, suspension without pay may also be an option for discipline. At each stage of discipline prior to dismissal, the employee should be informed of:

his/her record of absenteeism to date (if any);

the facts related to the current incident(s) of absenteeism;

the terms of the AMP (if not already provided) and the reason he/she has been placed in or continue to be subject to the AMP;

his/her record, if any, of discipline pertaining to prior instances of absenteeism; and

the consequences of further absenteeism (when the next instance of absenteeism will result in termination, the employee should be advise of this fact).

At each stage of discipline prior to dismissal, the employer should ask the employee to sign an acknowledgement that the employee received a verbal warning or was given a copy of the written warning.

When dismissing an employee for culpable absenteeism, the employee should be given a written letter advising of:

the date of the verbal warning and each subsequent written warnings and suspension(s) without pay (if applicable);

the specific wording in the warning letter preceding termination that stated that a subsequent incident would result in termination with cause;

the facts related to the current incident(s) of absenteeism;

the policy language that prohibits the misconduct and supports termination with cause in the circumstances;

any form of acknowledgement made by the employee that he/she was aware that repeated misconduct would result in termination with cause.
Step (3)(b): Assess and implement accommodation for non-culpable absenteeism.

An employee who has reported non-culpable absences should still be subject to an AMP and disciplined for culpable absences. However, instances of non-culpable absences, particularly when related to disability, employers must consider their obligation to accommodate such absences to the point of undue hardship as required by the Ontario Human Rights Code.

If continued non-culpable attendance issues are expected, the employer should consider:

asking for documentation from a medical practitioner setting out:

medical restrictions/limitations;
the expected duration of medical restrictions/limitations
the number of absences that may be expected due to disability; and
the frequency with which the employee will need to be absent during regular work hours for treatment (if applicable);

adjusting an acceptable absenteeism rate to accommodate the employee’s disability

this step should be supported by medical evidence;
when the employer has taken into account expected absenteeism due to illness, it is a form of accommodation;
if the workplace is unionized, a union steward should be involved in setting this measure;

assessing the employee’s position with the restrictions/limitations of the employee to determine:

accommodations that can be made to his/her current position;
alternate positions or duties that can accommodate the reported restrictions/limitations;

If the workplace is unionized, a union steward should be involved in the accommodation decisions. Ensure that management, human resource personnel and supervisors work together to address accommodation of attendance management issues. Culpable absences during accommodation should be treated consistently with all other culpable absences.

The requirement to accommodate to the point of “undue hardship” imposes a significant obligation upon employers. Before taking the position that accommodation is impossible without undue hardship, employers should seek the advice of legal counsel.

Frustration of Contract

In some instances of an employee’s extended non-culpable absence resulting from a protracted disability leave, an employer may take the position that continued employment has been “frustrated” and can no longer continue. Such a position may be available when the employee’s disability prevents him/her from performing his/her work in the foreseeable future. Employers should consider the following factors when assessing whether an employment contract has been frustrated:
what are the essential duties of the position the employee occupies?

how do employee’s medical restrictions interfere with the employee’s ability to perform his/her work?

have measures been taken to accommodate the employee?

how long has the employee been absent from work?

for how long has the employee been employed?

is the employee continuing to receive disability benefits?

does the medical evidence establish that the employee will be unable to return to work in the reasonably foreseeable future?

Asserting that employment has been frustrated carries significant legal risks for employers. Before taking the position of frustration, employers should seek the advice of legal counsel.