Attendance Management Programs themselves are not discriminatory; they just need to be carefully designed and properly applied. Such is the latest conclusion in the continuing litigation between Coast Mountain Bus Company Ltd. and the Canadian Auto Workers, a battle over an attendance management program covering transit operators in the Greater Vancouver region in British Columbia. In May 2009, we commented on the BC Supreme Court's decision in which the court largely accepted the employer's program.
In the latest chapter of this battle, however, the BC Court of Appeal has overturned the decision of the BC Supreme Court. The Court of Appeal determined that certain aspects of Coast Mountain's attendance management program systemically discriminated against disabled employees.
Coast Mountain's Attendance Management Program
Coast Mountain's attendance management program is a five-phase program:
- After employees with high absenteeism were identified, Coast Mountain had informal communications with them to allow employees to provide the reason for the high rate of absenteeism.
- Next, a Level 1 interview - intended to make the employee aware of Coast Mountain's concerns with his or her absenteeism and to offer any assistance that would lead to more acceptable attendance – occurred.
- If attendance did not improve, a Level 2 interview would be held. Here, the employer would request a medical assessment from the employee to assist in determining his or her ability to work on a regular basis and ascertain whether the employee had a medical disability.
- After the employee's medical information was assessed, a level 3 interview would occur. In this interview, Coast Mountain would communicate its attendance expectations and the possible consequences if the employee did not meet those expectations. Those attendance expectations were based on the average absenteeism rate of Coast Mountain's transit operators. In calculating the absence rate of the employee, days missed for short-term disability, long-term disability and workers' compensation claims were counted as absences.
- If the employee failed to meet the attendance expectations, an employment status review occurred. At that stage, a decision on whether or not to terminate the employment of the employee was made.
Systemic Discrimination in Setting Attendance Expectations
The Court of Appeal rejected the claims that the interviews at levels 1 and 2 were discriminatory. The purpose of the level 1 interview was to make the employee aware of Coast Mountain's concerns about his or her attendance record, and there was no adverse treatment flowing from such an interview. Similarly, the main purpose of the level 2 interview was to obtain a medical assessment in order to determine whether the employee in question had a medical disability. The Court of Appeal confirmed that it is not discriminatory for an employer to require an employee to establish that his or her non-attendance at work is due to a disability.
Unfortunately for employers, the Court found that the process at level 3 (at which point an employee's employment could be put in jeopardy) was discriminatory:
- Including absences due to short-term disability, long-term disability and workers' compensation claims in calculating absenteeism, both for placing employees at the level 3 interview and monitoring them after the level 3 interview, was discriminatory. Similarly, by including partial days missed while on gradual-return-to-work programs in calculating absenteeism, the attendance management program was discriminatory. In these cases, the employee's disability was as factor in this calculation and that, the Court of Appeal said, was discriminatory.
- Despite being aware that an employee's disability could lead to elevated absence levels, the employer applied the same attendance expectations to disabled and non-disabled employees alike. This was discriminatory because disabled employees ended up progressing through the levels of the attendance management program process more quickly.
Take-Home Lessons for Employers
The good news for employers from this decision is that attendance management programs, per se, are not discriminatory. Neither are raising concerns about an employee's poor attendance nor seeking medical information from an employee to explain his or her.
But the story is not all good news. Employers need to consider the following:
- In considering the attendance expectations of disabled employees, employers should consider the specific circumstances of each of the disabled employees, including how his or her disability may affect his future attendance. Expectations based on the average attendance rates of non-disabled employees are discriminatory.
- Absences of disabled employees that are due to their disabilities should not be treated the same as absences of non-disabled employees that are not attributable to a disability.
Although they come from a BC decision, given the similarities in human rights laws in each province