Employers who deal with management of medical conditions and/or disabilities in the workplace know that each issue must be dealt with individually with particular attention to the specific facts and circumstances of the case. Managing chronic illness (i.e., those that are persistent, recurring and long-lasting) at work can be particularly challenging for employers due to the nature of the condition, changes in symptoms and the degree or frequency of recurrence.
Persistent illnesses can affect the employment relationship in a myriad of ways and long-lasting medical conditions are often live issues in workplace litigation including: human rights complaints dealing with the duty to accommodate; wrongful dismissal claims involving frustration of contract as well as labour arbitrations where innocent absenteeism and accommodation are at issue. Broadly speaking, to succeed in defending claims arising from chronic illness employer have to prove: (a) the illness was persistent in nature and was unlikely to improve and (b) continued employment/ accommodation would alter the essential nature of the employment relationship.
DISMISSAL FOR EXCESSIVE ABSENTEEISM
In a recent (March 2015) arbitration award, Ontario Public Service Employees Union (Bartolotta) v Ontario (Children and Youth Services), 2015 CanLII 19329 (ONGSB), the grievor was a youth services worker who was dismissed for “innocent, non-culpable absenteeism and frustration of the employment contract” due to extended absences resulting from a chronic back condition. Although the arbitrator recognized that the grievor was a good employee when he was able to attend at work he suffered from a chronic multi-level degenerative disc disease that caused him to take 310 sick days over a 4-year period. While sympathetic to the grievor, Arbitrator Tims held that the employer accommodated the grievor to the point of undue hardship and, on the facts of that case, was not required to accept his ongoing absenteeism. She recognized:
- The employer had proven that the grievor’s record of absenteeism was excessive and that his absenteeism would likely remain so.
- Warnings that his employment was in jeopardy were provided.
- The grievor’s excessive absences and their likelihood of persistence were such that he was not able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.
- Requiring the employer to continue to accept the excessive absenteeism would alter the fundamental essence of the employment contract (i.e., attendance at work and performance of duties in exchange for wages and benefits).
Although this is a helpful case for employers, chronic illnesses in the work in the workplace are particularly difficult to manage and each situation must be considered on its unique facts, keeping in mind the nature of the condition, the job the employee performs and characteristics of the workplace. Our experience suggests that the following basic steps should be followed when dealing with employees with persistent medical conditions:
- Be proactive – engage with the employee and the union (if applicable) at the early signs of chronic illness or patterned absenteeism. Often times accommodation at an early stage can avoid conflict down the road.
- Consider the evidence – work collaboratively (to the extent possible) with the employee and their care providers to obtain relevant medical information that is specific to their limitations and to your workplace. Follow up regularly and review that information with the employee.
- Think creatively and “outside the box” – consider the functional and attendance-related limitations – are there any alternative positions the employee could fulfill? If not, is there a combination of productive tasks they could fulfill without completely disrupting the workplace?
- Show your work – from the outset, keep detailed notes about managing the illness at the workplace such as notes about accommodations considered, the response(s) of the employee and, on an ongoing basis, how the efforts to accommodate are impacting the workplace (good and bad).