One of the most frustrating, costly and challenging issues facing employers is chronic absence of employees. Culpable absenteeism, or absenteeism within the employee’s control, may very well constitute cause for dismissal, but this article focuses on termination of employees for innocent absenteeism, particularly caused by illness, disability, or other protected grounds under human rights legislation.
Each of the issues below warrants discussion far beyond the scope of this article, but before terminating an employee for innocent absenteeism, it’s essential that employers consider the following.
Is the employee’s absence related to a "protected ground"?
Most employers are aware that physical and mental disabilities are protected under human rights legislation and attract a duty to accommodate up to the point of undue hardship. However, even if an employee’s absence (or pattern of absences) isn’t caused by a physical or mental disability, depending on where you live in Atlantic Canada, certain other causes also trigger the duty to accommodate, depending on your jurisdiction. Although most protected grounds are uniform across the Atlantic provinces and under the Canadian Human Rights Act ("CHRA"), certain jurisdictions have unique protections: i.e., "social condition" in New Brunswick, "family status" in Nova Scotia, Newfoundland & Labrador, Prince Edward Island and under the CHRA, and "irrational fear of contracting illness or disease" in Nova Scotia and under the CHRA. For this reason, it’s important to know what grounds are protected in your particular workplace.
The test for non-culpable termination
In order to justify termination for innocent absenteeism, there must either be a recurring pattern of intermittent absences or a single long period of absence. There’s no "magic" number of days an employee must miss to justify termination, but absence(s) must be excessive and should be well beyond the average level of absenteeism among other employees.
Employer’s must also be able to show that the employee’s attendance is unlikely to improve. It generally is insufficient to simply point to the employee’s past record of poor attendance as demonstrative of the future. If the absence relates to an illness or disability, doctor’s reports are helpful to establish the likelihood of improvement in the foreseeable future, even if accommodations are made.
Before deciding to terminate the employment relationship, the employer must have warned the employee that absenteeism is excessive and that failure to improve attendance could result in termination.
Finally, employers must demonstrate an inability to accommodate the employee to the point of undue hardship. This doesn’t mean that it must be impossible to accommodate the employee, but employers must consider such things as reduced hours of work, alternate shifts, modified duties, or a transfer to another position within the employer’s organization, to determine whether an accommodation, if possible, could result in improved attendance.
Is there an attendance management policy in the workplace?
For employers to meet the test outlined above, documentation is key. A well-drafted attendance management policy can assist employers in obtaining the documents required in order to either appropriately accommodate an employee so that he/she is able to attend work on a regular basis, or to justify the decision to terminate an employee. An attendance management policy should:
- Explain the employer’s attendance expectations;
- Set out the procedure for reporting absences;
- Explain how reasons for absences must be substantiated (e.g., by doctor’s notes, etc.);
- Outline when an employee’s absences will trigger the program (e.g., when the number of absences exceeds a specified number, or when a pattern of absences is present);
- Differentiate between innocent and culpable absenteeism, with separate appropriate responses for the two;
- Allow for individualized treatment of employees with absenteeism issues;
- Recognize that employees with disabilities will be treated in a manner consistent with human rights and other legislation and employment contracts or collective agreements; and
- Provide for periodic non-disciplinary interviews and/or counselling, rehabilitation, accommodations, and return to work provisions.
It’s important that attendance management policies be consistently applied. Consistent application can assist in avoiding the appearance that an employer has selectively terminated or otherwise disciplined an employee for absenteeism.
Is the employee receiving or about to become entitled to receive disability benefits?
Even if the above test for non-culpable termination has been met, employers should consider whether termination will prevent an employee from receiving disability or sick leave benefits. For example, if an employee isn’t yet receiving long term disability benefits, but is close to qualifying, generally he should be kept on staff until he can be enrolled and start receiving benefits. Employers should consider the specific wording of their disability policies in assessing their potential liability for terminating an employee who is receiving disability benefits.
Is the employee’s absence related to a workplace injury?
If an employee is absent from work as a result of a workplace injury and is receiving workers’ compensation benefits (or is applying for same), workers’ compensation legislation protects a qualifying employee’s right to return to work for a specified time (generally for one or two years), as long as the employee continues to meet certain criteria established by the workers’ compensation bodies in each jurisdiction. Before terminating an employee for innocent absenteeism in such an instance, employers should verify whether their duty under the applicable workers’ compensation legislation has expired or is ongoing.
The test for terminating an employee for innocent absenteeism is stringent and requires vigilance on the part of the employer. A well-drafted attendance management policy can assist not only in decreasing unnecessary absences among your workforce, but also in ensuring that adequate steps are taken to appropriately accommodate employees and in obtaining the documentation required in order to meet the test for termination as outlined above.