Separating the legitimate absences from the suspicious ones is a good place to start to avoid discrimination complaints
By Jeffrey R. Smith
Employees are the most important element of a business — without employees, not much is going to get done. The only exception may be a very small business where the owner can get by running things herself, but even then the owner may be run ragged without someone to help.
So when employees aren’t at work, it can have negative effects on the business. Obviously, employees have to have time off for vacations, illnesses and important errands, and employers must be able to cover for these. Out of these reasons for absences, illness can be the most difficult for employers to cover because they are usually unplanned. Many employers can have other staff fill in over the short-term, but if the absences are long or numerous, it can put pressure on the business and hurt productivity.
Many employers adopt attendance management plans to help understand and manage employee absences. On the surface, such plans may seem intended to catch employees trying to fake illnesses to get sick days, or penalize employees who take too much time off, but they are often used for other reasons, too. Attendance management plans can be a way for employers to determine whether employees who are having difficulties need help through accommodation or more approved time off.
However, employers must be careful about how such plans are applied, because they can risk discriminating against employees. Some employers have found their plans declared in applicable because they were unfair to employees based on grounds protected by human rights legislation — even though the intention was not to discrimination and the reason was legitimate.
A federally regulated employer recently found itself in such a situation when it implemented an attendance management program due to concerns over absenteeism. The stated purpose of the plan was not disciplinary at all, but rather to ensure communication between management and employees about absences and to find out if any employees with a number of absences needed accommodation.
However, eight employees challenged the program after they were required to meet with management over their absences and the meeting was placed in their employee records. As a result of these challenges, an arbitration board found the program discriminated against employees based on two protected grounds — family status and disability.
The discrimination came about because they were entered into the program because they crossed the stated threshold for absences above the employee average, requiring action. However, the threshold was calculated by including all approved sick leave and family-related leave. All the employees who took family-related leave did so because they had important care duties related to children and other family members, and this leave was permitted under the collective agreement. Some of the employees also took sick leave because of disabilities.
Because the employees were entered into the program because of absences caused by family status and disabilities, they were treated differently because of those protected grounds and suffered discrimination as a result. The board declared the program discriminatory and awarded damages — just a small amount as the program didn’t really discipline the employees but did treat them differently because of their protected grounds: see Bodnar v. Treasury Board (Correctional Service of Canada), 2016 CarswellNat 4367 (Can. Pub. Service Lab. Rel. & Emp. Bd.).
Attendance management programs can serve a purpose, especially for workplaces that have problems with excessive absenteeism. But employers have to be careful in not being overzealous in their application and ensure they’re targeting truly suspicious absences and not those known to be legitimate — such as approved family and disability leave. Discriminating against employees could end up being more detrimental to a business than absenteeism.
