An employee’s performance of his or her contractual obligations to his or her employer is a fundamental element of the employment relationship. In general, these obligations will include regular attendance at work. An employee who is chronically absent is unlikely to be able to perform his or her employment obligations to the satisfaction of the employer.
How should employers respond to this issue? First, you need to determine if the absenteeism is culpable or non-culpable. If the attendance issues are the result of an employee’s own carelessness or misconduct, unauthorized absences should be treated as a performance issue and should result in disciplinary action.
Where the chronic absenteeism is non-culpable and is the result of an illness or disability, the situation is more complicated. Employers must balance their right to regular, full-time attendance with their obligations to accommodate disability to the point of undue hardship.
What does “undue hardship” mean in the context of an employment relationship? Recent case law implied that this duty was only satisfied if it was “impossible” for an employer to accommodate the employee. Last year the Supreme Court of Canada clarified the extent of this duty in the case of Hydro-Quebec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ) (“Hydro-Québec”).1
In Hydro-Québec a sales clerk with 24 years of service was dismissed after chronic absenteeism over a seven and a half year period. The absences were the result of numerous health problems, including undergoing several surgical procedures and depressive episodes. Shortly before her termination the employee was diagnosed as having a mixed personality disorder along with borderline character traits. Hydro-Québec made several attempts to accommodate the employee, including going beyond the obligations of the collective agreement by reassigning her to a new position after her prior position was abolished. Finally, in 2001, Hydro-Québec terminated the employment relationship on administrative grounds.
At the time of her dismissal, the employee had been absent for a six month period and two psychiatrists had assessed her as likely being unable to return to work on a regular and reasonable basis for the foreseeable future. The employee filed a grievance as the result of her dismissal.
The arbitrator dismissed the employee’s grievance and held that accommodating the employee’s illness would constitute undue hardship, since “the [e]mployer would have to periodically, on a recurring basis, provide the complainant with a new work environment, a new immediate supervisor and new co-workers to keep pace with the evolution of the 'love-hate' cycle of her relationships with supervisors and co-workers”.2 In addition, the arbitrator found that several of the stressors contributing to her condition, such as the employee’s family environment, were beyond the employer’s control.
On the Union’s application for judicial review, the arbitrator’s decision was upheld by the Québec Superior Court. However, the Québec Court of Appeal found that the arbitrator had erred because he had not found that it was “impossible” to accommodate the employee. Hydro-Québec appealed.
In July 2008 the Supreme Court of Canada overturned the Québec Court of Appeal and in doing so made several important findings which limit the extent of the employer’s duty to accommodate.
First, it held that an employer is not obligated to demonstrate that it is “impossible” to accommodate an employee, but that it is impossible to do so without undue hardship. The duty to accommodate does not fundamentally alter the employment contract; it merely requires employers to take reasonable measures to assist employees with disabilities in fulfilling their employment obligations.
Second, the Supreme Court held that the employee’s entire history of absences should be examined when assessing whether there has been reasonable accommodation. Employers do not need to be aware of a specific disability before their accommodation efforts can be taken into account; prior measures can also constitute or contribute to a finding that an employee has been reasonably accommodated.
While the Hydro-Québec decision helps clarify the limits of an employer’s duty to accommodate non-culpable chronic absenteeism, it does not provide employers with guidelines on what specific actions are necessary to show reasonable accommodation. The Supreme Court emphasized that the duty to accommodate is an individualized one and will require a variety of actions depending on the unique circumstances of each case. Common examples of accommodation include a variable work schedule, new work assignments, and modification of an employee’s workspace.
Before terminating an employment relationship due to chronic absenteeism, employers must make significant efforts to accommodate a disabled employee. We also recommend carefully documenting all efforts to accommodate an employee’s disability, including the employee’s own efforts to participate in accommodation and the union’s response to any requests for cooperation in this regard.
In Hydro-Québec, the employer made numerous attempts to accommodate the employee for several years; she was finally dismissed only after there was evidence that she would not be able to return to regular work in the foreseeable future. Despite these accommodation efforts, the Québec Court of Appeal found that the employer had failed to discharge its duty to accommodate. While this decision was overturned by the Supreme Court, it emphasizes the dangers all employers face when dismissing employees in cases of non-culpable chronic absenteeism even where significant efforts have been made to accommodate a disabled employee.