Absenteeism Controls are Intertwined with Disability Management
In the workplace there are two types of absence, each of which requires a different type of approach on the part of the Human Resources Manager who has been assigned this area of specialty and responsibility.
1. Innocent Absenteeism
Innocent absenteeism refers to employees who are absent from the workplace for reasons which are beyond their control such as illness or injury. Innocent absence is also referred to as non-culpable absence.
In workplaces where Collective Agreements are in place Non-culpable absences cannot be remedied or follow the organizations’ disciplinary measures & processes in place for Culpable absence.
2. Culpable Absenteeism
Culpable absenteeism on the other hand refers to employees who are absent without authorization on the part of their manager or supervisor and the absence(s) occur for reasons within the employee’s control.
This might include an employee who uses sick leave time even though they do not have a bona fide illness or injury. Culpability means the employee is blameworthy & therefore progressive discipline can and should occur once performance management steps have been followed & documented on the part of the manager.
As most Human Resources Managers and Case Managers know, many employees in the organization will be absent from the workplace for legitimate & therefore innocent reasons and these absences occur infrequently. Your organization most likely has in place procedures for disciplinary action which only applies to culpable absence from work. The most common approach taken in Canadian workplaces involves the process of individual absence counselling & closer supervision whereby most employees overcome their problems and return to the accepted & stated level of regular attendance.
Developing the Threshold for Excessive Absenteeism
One of the first steps your Human Resources Director or Manager should take when developing or upgrading the Disability Management program is to review the entire attendance management and performance management process. Trends, patterns, aggregate benefits & medical use data should be reviewed to determine the pattern and acceptable thresholds for the organization. Absence trend analysis for your industry should also be discussed and shared with your industry association.
Once this background work is complete absence numbers and thresholds should be determined; published and made known to each employee and their manager.
The HR personnel assigned to the Attendance or Absence Management program should be regularly reviewing trends with the managers and supervisors as compared to the organization norms & numbers. This same data can also allow comparison of employees within the same department and across departments. These numbers & trends need to be measured against the backdrop of seasonality & context (increased number of days lost due to allergy season, flu season, weather patterns, changes in HR policy allowing for more time to work from home, downturn in economics & business performance etc).
If the indicators show that an employee is excessively absent, the next step is to gather as information to get a clearer picture of the situation. The employees’ files should be reviewed and the employee’ supervisor/manager should document all available information on the particular employee’s history, performance related changes and context as outlined above.
Communication & Meeting with the Employee
After careful collection of the information & absence data the supervisor (and the HR Absence Specialist) should meet with the employee identified as having higher than average or questionable patterns of absence.
The purpose of this initial meeting is simply to let the employee know there are concerns about the attendance record & to bring this to the employee’s attention. This meeting also allows for discussion about the causes for the attendance problem & the steps the employee can take to remedy the absences. This initial meeting should be documented while also ensuring the supervisor/manager really hears the employee’s feedback which leads to an understanding of how they propose to improve their attendance and/or performance. This initial meeting should be positive in tone and be focused on how the organization takes attendance seriously and how the lack of attendance in the workplace on the part of the employee impacts their fellow employees and the quality of work being completed.
Having the supervisor/manager review a print out of the patterns & rates of absence and a reminder of the organization’s written thresholds provide a good visual highlight & method of keeping the discussion on track.
This initial meeting can also allow the supervisor/manager to explore in depth with the employee the reasons for their absence as well as to provide support & supervision at that time. The supervisor/manager can offer access to the EAP program of counselling where indicated during this meeting.
Most often following these meetings the employee reduces their absence from the workplace. These meetings when handled properly remind the employee their team and manager are concerned about their absence and want to see this improve.
In going forward the employee’s attendance should be closely monitored until it has been reduced to acceptable levels (as per the written threshold for your organization). On-going supervision & counselling should take place for the employee & of course if marked improvement occurs this should be conveyed to the employee. All meetings are documented and the employee should know these are kept in their files.
What if absence stems from illness or injury?
As the Absence management process moves along it may be necessary at some point for the supervisor/manager to determine the reasons for high levels of innocent or culpable absenteeism. This includes verifying the nature and reasons for the absence.
The content and nature of these meetings can be can be delicate in nature given the employee’s right to privacy balanced with the employer’s need for information which is affecting workplace morale and productivity. When and if medical information is being discussed at this point this can quickly become a source for conflict & defensiveness.
If your organization is unionized it will be important for collective agreement language to allow for some inquiry on the part of the supervisor/manager to better understand the bona fide reason for absence from work.
Generally speaking jurisprudence across Canada reveals and recommends the following occur as part of the Absence Management and Disability Management programs:
- There is an on-going right to privacy on the part of an employee unless the employer can demonstrate its legitimate business interests necessitate some intrusion into the employee’s personal information
- When such intrusion is justified it should be limited to the degree of intrusion necessitated by the employer’s interests.
- An employee has a duty to notify the employer of an intended absence, the cause of the absence and its expected duration. This information is required by the employer to meet its ability to schedule work and organize its operations
- An absent employee has an obligation to provide his employer with information regarding any change to their condition or circumstances relating to it which may affect the employer’s requirement to schedule work and organize its day to day operations. As such, the interests of the employer in having this specific information outweigh the individual employee’s right to privacy.
- Commonly used employer Policies requiring proof for every absence is unreasonable where an issue of absenteeism does not exist.
- The obligation to prove sickness, where the employer requires proof, rests with the employee & their Physician
- The employer in order to ensure it has the appropriate types & levels of medical/functional information should use form templates with specific questions of the Physician, Physiotherapist, Psychologist including; reasons why absence from work are required.
- It is critical for organizations to have in place policies which clearly state that lack of receipt of the form could result in loss of pay until the form is received and completed fully.
- To ensure the template forms are completed appropriately the organization should ensure all employees know when to acquire the forms; where to acquire the forms from; how to instruct the treating practitioner on the importance of the form; and how to invoice the employer upon completion of the form.
- An employer may require an employee to prove “fitness for work” where it has reasonable grounds to do so.
- Where unusual circumstances raise reasonable suspicion that an employee might have committed an abuse of an income protection program or the absence management program, the organization can require the employee to explain such circumstances.
As per good employment practice any intrusion into the employee’s privacy must be shown to be reasonable, based on the individual circumstances and in relation to the operation of the employer’s business.
Following Initial meeting if Attendance does not improve;
If after the initial interview & follow up supervision & counselling & if over time the employee’s absenteeism has not improved, it may be necessary to take further action. Further actions not occur until the supervisor/manager has met with Human Resources to ensure an appropriate approach & timing occurs for subsequent meetings and to ensure all policies and procedures are followed closely.
Determining whether counselling versus disciplinary action is appropriate, depends on whether the employee’s absences are innocent or culpable. If the employee’s absenteeism results from both innocent and culpable absences, then each type must be dealt with as a separate issue but can and should be dealt with at the same time.
Supervision for Innocent Absenteeism
Innocent absenteeism is not blameworthy and therefore disciplinary action is not justified. Absenteeism, no matter what the cause, imposes losses on the employer who is also not at fault. The damage incurred by the employer is always weighed against the employee’s right to be sick. There is a point at which the employer’s right to expect the employee to attend work regularly and fulfil the employment contract will outweigh the employee’s right to be sick. At such a point the termination of the employee may be justified, as per the legal term & policy “Frustration of Contract”. Any movement in this direction on the part of the Manager and Human Resources should only occur following discussions with the organization’s labour lawyers.
The procedure an employer may take for innocent absenteeism is as follows:
- Initial meetings, supervisor and counseling
- Written counseling along with meetings
- Reduction(s) of hours and/or job reclassification
- Discharge from employment based on Frustration of Contract
On-going meetings and supervision/counselling
The steps outlined in this section and in all sections of this book presume the Human Resources & DM departments or managers have clearly communicated attendance & DM expectations to all employees and that these procedures are in writing (the requirement to put these procedures into writing has increased for the Province of Ontario under the Integrated Accessibility Standards (IAS) for the AODA).
Once all of these procedures have been conveyed and in knowing there is an employee who has been identified as having attendance issues the supervisor/manager will meet with the employee. Follow up meetings and reviews of attendance will occur to monitor the effect of these efforts on attendance/performance.
If the absences are intermittent, the supervisor/manager should meet with the employee each time they return to work. If absence is longer, the supervisor/manager should keep in touch with the employee regularly and stay updated on the status of their condition & indicate a willingness to assist the employee.
The employee may be required to have the Absence from Work Form completed by the Physician and/or Physiotherapist (functional expert) and/or Psychologist to determine the likelihood of the employee being able to attend regularly at work in the near future. Regular review of these Forms will provide the supervisor/manager with the steps the employee is taking to seek medical & rehabilitative treatment and other assistance. Formal meetings may require additional verbal warnings which will be well documented. If no improvement in attendance occurs, written warnings are then provided.
If the absences persist the supervisor/manager will meet with the employee formally and provide them with a “letter of concern”. If the absenteeism still continues to persist then the employee should be given a second “letter of concern” during another formal meeting.
Each subsequent letter is more clearly and strongly worded including warning the employee that unless attendance improves, termination may be necessary.
Reduction(s) of hours and or job reclassification
In between the first and second letters the employee may be given the option to reduce their hours to better fit the personal circumstances. This option must be voluntarily accepted by the employee and cannot be offered as an ultimatum, as a reduction in hours is a reduction in pay and therefore can be looked upon as discipline.
If the nature of the illness or injury is such that the employee is unable to fulfil the requirements of their job demands, but could benefit from modified work, counsel the employee to bid on jobs of such type if they become available. The onus should be on the employee to apply for an existing position within his/her capabilities.
Discharge from Duties due to Frustration of Contract non Culpable
Only when all the previously noted needs and conditions have been met and everything has been done to accommodate the employee can termination be considered. An Arbitrator would consider the following in ruling on an innocent absenteeism dismissal case.
- Has the employee done everything possible to regain their health and return to work?
- Has the employer provided every assistance possible? (i.e. counseling, support, time off.)
- Has the employer informed the employee of the unworkable situation resulting from their sickness?
- Has the employer attempted to accommodate the employee by offering a more suitable position (if available) or a reduction of hours?
- Has enough time elapsed to allow for every possible chance of recovery?
- Has the employer treated the employee prejudicially in any way?
As is evident, a great deal of time and effort must elapse before dismissal can take place.
These points would be used to substantiate or disprove the following two fold test.
- The absences must be shown to be clearly excessive.
- It must be proven that the employee will be unable to attend work on a regular basis in the future.
Corrective Action for Culpable Absenteeism
As already indicated, culpable absenteeism consists of absences where it can be demonstrated that the employee is not actually ill and is able to improve his/her attendance.
Presuming you have communicated attendance expectations generally, have identified the employee as a problem, have met with him/her as part of your attendance program, made your concerns on his specific absenteeism known and have offered counselling as appropriate, with no improvement despite your positive efforts, disciplinary procedures may be appropriate.
The procedures for corrective/progressive discipline for culpable absenteeism are generally the same as for other progressive discipline approaches for performance related issues. The discipline should not be prejudicial towards the employee. The generally accepted procedure which we advocate is as follows: [Using counselling memorandum & form letters and while keeping Human Resources apprised of this situation]
- Initial Warning(s)
- Written Warning(s)
Supervisor/manager meets with the employee on a more formal basis. Explain how sick days, STD and LTD (including WCB) income protection is to be used only when there is a legitimate impairment (illness or injury with accompanying disability preventing Stay at Work). Advise the employee that their attendance record must improve to the pre-determined and well communicated level for your organization. Inform the employee this level of attendance must be maintained at this level or further disciplinary action will result. Offer EAP counselling & supervisory guidance as appropriate.
Proceed to give further verbal warnings in formal meeting formats as required.
Review the employee’s use of sick days, STD and/or WCB income protection records at regular intervals. Also look at lateness, leaving early, patterns of absence and even presenteeism. Where a marked improvement occurs, commend the employee. Where there is no improvement and even a worsening pattern, issue a written warning.
Meeting and Written Warning
Set up a meeting with the employee again. Review the statistics, trends, feedback & the organization’s absence policy and standards. Highlight how there has been no noticeable (or sufficient) improvement in attendance in the workplace.
Let the employee speak to determine if there is a valid reason for this lack of change and offer assistance of an EAP and supervisor nature. If a satisfactory explanation is not provided, advise the employee they will be given a written warning. Be specific during the discussion & in the counselling letter about the type of action to be taken and when it will take place if the record does not improve. Let the employee know the written warning letter will be placed into their file which will include notes about the statistics and patterns noted since the last meeting.
If the amount & pattern of absence continues to exceed the organization’s written limits & policy the next step includes progressive discipline where a second, stronger written warning is issued as part of a formal meeting. Most labour lawyers in Canada recommend this second written warning be used as an alternative to proceeding to a higher level of discipline such as suspension in order to ensure a conservative approach is used at all times. Consideration should also be given to factors such as the severity of the problem, the credibility of the employee’s explanations, the employee’s general work performance and length of service.
Suspension is an option only after the supervisor/manager has conferred with Human Resources, Sr Managers and your organizations labour law specialist.
If the problem of culpable absenteeism persists despite the meetings & warning letters, another meeting should occur immediately following an absence. The meeting will follow the same course as the above outlined meetings with the addition of advising the employee they are being suspended. The length of the suspension will depend on the severity & patterns of absence; objective work performance measures, the credibility of the employee’s explanations, other measures regarding presenteeism, attempts to correct the issues thru working with EAP councillors, & length of service.
Following a return from the suspension if the absence issues continue further suspensions of increasing length of time can and should be used (Labour Lawyers are cautious about the disciplinary process. The use of Last Chance Agreements is also recommended to be used. The Disciplinary process is a long process temporally and requires a good deal of time, effort, note writing. However given that these steps may lead to the eventual loss of an employee’s job an abundance of caution should prevail.
Dismissal; this occurs following all of the form steps listed above and after consultation with Senior HR Managers and the organization’s labour lawyers. This also follows the use of written Last Chance Agreements.
Dismissals should only be considered when all of the above conditions and procedures have been met & if/when the employee continues over time to show no satisfactory improvement in attendance. At this point in time the employee is dismissed on the grounds of their unwillingness to correct their absence record.
A growing trend we see in our practice and learn about from employers whom we interview occurs when an employee attends a Performance Review which is not what they expected; or commence a Progressive Disciplinary process; or have a negative encounter with their co-worker or supervisor followed by a call to the workplace on the part of that employee stating they have gone to see their Physician and are to be off work indefinitely. This trend expands further in the sense that the number one reason for this absence is stated to be due to “stress” or depression or anxiety “caused” by the workplace.
These types of reasons provided by the employee and their physicians for lost time from the workplace have a significant & often silent impact on workplace morale, is incredibly expensive for Canadian businesses & rarely serves the best interests of the employee themselves.
The frustration we learn about in our surveys and through direct contact with clients are around the growing concern about how sick-days and short term disability benefits are being unfairly exploited by some poorly performing employees who use a medical reason for their subsequent absence from work.
Employers we work with and speak with at conference across Canada seem to tell similar if the not the same stories;
Deciphering Doctors Notes in particular for “stress leave”.
Employers in Canada have limited ability to question the legitimacy of a note from the general practitioner once these notes are received and accepted by the workplace (see Chapter on non-acceptance of physician’s notes and use of template forms only with signed employee consent). At the same time Canadian workplaces cannot discriminate against an employee with a legitimate disability or dismiss a disabled employee or adversely affect their terms of employment because they are disabled. This protection follows from each of the WCB Acts in each province and territory, Provincial Human Rights Laws & Statutes and now, the AODA Act in the Province of Ontario.
At the end of the day each employer must accommodate a disabled employee by accommodating the workplace; creating modified work; or providing leave so the employee can recover from or manage their disability.
On the other hand an employee is not protected when their “stress” (remember in using the appropriate Physician Forms the word “stress” does not have to be accepted as a diagnosis is therefore not a reason to avoid the workplace) relates to their personal feelings about the new manager they work with; their poor performance or their being bypassed for a promotion. If the “stress’ turns out to be a symptom of a bona fide medical diagnosis such as depression and anxiety then the employee will be protected from any progressive discipline during that time period. (recall chapter about Healing Timelines which applies to depression and anxiety with expected return to work dates. Depression and anxiety unless serious in nature should not preclude any employee from resuming all activities of daily living including work after a 1 to 6 week time period).
If your organization wants to progress your program toward good Disability Management however it will be critical for the DM or Return to Work specialist within your organization or within the consulting company hired to work with your HR team to determine the nature of the diagnosis (if a diagnosis exists). Employers have the right to request information about the prognosis for recovery; the length of time needed for rehabilitation & recovery; whether the employee will be using medication that may impact a safety sensitive position; whether there will be any requirement for a graduated return to work & specifically what functional impacts the impairment may have on the employee’s abilities.
In some circumstances your organization should consider sending the employee to a Psychiatrist and/or Psychologist in the cases where the GP or Family Physician are not able to expedite a review by a specialist for the employee. (A review by the Specialist is not an IME which we strongly recommend not be used except in extreme cases where the employee’s physician has been proven to be overstating or understating the employees’ actual impairment and level of disability and where the safety of the employee, co-workers or the public is at risk).
Remember Privacy Law does not permit your organization to ask the for the employee’s diagnosis. However the Case Manager who works independently for your organization or with your insurance provider can request this information provided there is signed consent by the employee.
Having this information is critical for 3 reasons;
Limiting sick-leave benefits
Another approach is to limit an employee’s entitlement to sick-leave & STD benefits based on the evidence provided by the claims manager and case manager. This is based on the fact that an employee is less inclined to take time off work in the case of a mild level of injury or illness if this time is not paid for. Your organization can and should require additional medical information to verify the nature of the absence request an employee may make particularly as it relates to “stress leave”. As outlined later in this book your organization should require that, as a condition to receiving benefits the appropriate practitioner completes the correct form which objectively proves impairment is present and it disables the employee from commencing the return to work process. These steps are of course based on the fact these policies and procedures are in place prior to the employee making the request for sick-leave & STD benefits and should be applied equally to all employees.
A point to be remembered by organizations and in particular managers and supervisors who attempt to correct work performance; improve attendance; or work with employees who are struggling to learn to work with new managers, is the employee may take time from work when there is a legitimate illness or injury in place. The ability to carry on discipline, the performance review or not promote the employee will be restricted during the time in which the employee is away from the workplace. These plans however are simply delayed during this time period and should never be “shelved”. As soon as the employee returns to work or commences the return to work process the supervisor/manager can recommence the disciplinary process; attendance and performance management processes; or provide the long-awaited performance appraisal. Discipline or an appraisal may be delayed by the DM process temporarily but it should never be denied.