Dear ONA34 Members:
Establishing an Attendance Management Policy is a common response of employers to address the issue of excessive absenteeism. Attendance management programs fall within an employer’s inherent management right to take steps to monitor, maintain and encourage regular attendance. Regular attendance at work is a fundamental term of employment. The existence of these programs has been recognized by arbitrators as a valid exercise of management rights to monitor and improve attendance when they are properly designed and administered.
Arbitral jurisprudence has established certain absences, characterized as innocent, cannot be counted for the purpose of placement or progression through the attendance management program. The primary example is any absence due to disability.
Arbitrators have stated that absences due to a disability cannot be counted for the purpose of placement in an attendance management program or progressing through the program. Otherwise, employees with absences attributable to a disability would progress though the program at an accelerated rate and put their employment in jeopardy. Therefore, placing an employee with a disability in an attendance program for disability-related absences where the employee is subject to unrealistic expectations constitutes discrimination under the Code.
There are two types of absenteeism:
- Culpable Absenteeism
If an employer can establish that an employee has been absent without medical or other justification, such as being absent without leave, the employer is free to treat the employee’s conduct as culpable and to impose discipline under the just cause standard.
For example, if the employee calls in sick and instead attends a concert or goes to work at another facility and the employer finds this out, the employee will be disciplined for lying and/or abusing sick pay benefits.
- Non-Culpable or Innocent Absenteeism
In this case, the absence is due to factors beyond the employee’s control, such as:
- Illness or injury.
- Disability as defined in the Ontario Human Rights Code (“Human Rights Code” or “Code”).
- Family or personal emergencies.
The employee is not blameworthy in these cases and so disciplinary action is inappropriate. Innocent absenteeism does not include pre-approved leaves such as vacation, education leave and parental leave.
What Absences Should Not Count:
It is ONA’s position that the following days of absence are not to be counted for the purposes of being placed on, or progressing through the steps of any attendance management program:
- arising out of a medically-established chronic condition,
- an ongoing course of treatment,
- a catastrophic event,
- absence for which WSIB benefits are payable,
- surgical interventions, or
- days where the employee is asymptomatic and is under a doctor’s care from the commencement of symptoms for a confirmed communicable disease (and has provided medical substantiation of such symptoms), or
- is required to be absent under the Hospital or public health authority protocol,
- Leaves covered under the Employment Standards Act and leaves under Article 11 will not be counted for the purposes of being placed on, or progressing through, the steps of an attendance management program.
Union Representation at Each Step:
It is ONA’s position that members have representation at each step meeting. ONA should be notified of each progression through the program so we can continue to advocate for the member, including advising her to go to occupational health, if they have a disability, to provide the appropriate medical documentation. It is important that the union is present to explore all options, including the following:
- Facilitating a medical leave and application for short-term disability if the employee should not be at work.
- Requesting an accommodation that would permit the employee to be able to perform work on a sustained basis.
- Canvassing options other than termination, such as posting into another position, or job share that would be suitable based on the employee’s attendance rate.
- Advising the employee to see her physician to assess treatment options.
Members are advised to contact the Union if they are notified that their absenteeism has triggered entry into the attendance management program. ONA will represent and advocate for their rights. Here are some questions to ask if you are first placed on the Attendance Management Program, advanced in the program, or terminated:
- What is the member’s level of absenteeism?
- Has the employer included absences that should not be included?
- Has the member been accommodated?
- Does the member need to be accommodated?
- Is the accommodation appropriate or not? Is it contributing to the member’s absence from the workplace?
- Is there a pattern of harassment by the employer?
Attendance Management Policies must be applied fairly and in accordance with the collective agreement and the Ontario Human Rights Code. To ensure that you are fully informed and supported ONA34 recommends that members:
- Read the employer’s Attendance Management Policy.
- Contact the local034@ona.org immediately for guidance and support if you have been notified that your absenteeism has triggered entry into the program.
- Advise occupational health of the reasons for any absence that should not be counted, such as the existence of a disability and ensure that such absences are excluded by the employer when counting the absences.
- Seek guidance from ONA34 on how much information needs to be shared and to ensure that occupational health maintains the confidentiality of medical information.
- Where disability results in absenteeism, ensure that you are under medical care and following directed treatment.
If you have received a letter or have concerns about your attendance record, please do not hesitate to reach out to local034@ona.org. ONA34 is here to support you through this process and ensure that your rights and entitlements are protected.
In Solidarity,
Ann Scott
ONA34 Bargaining Unit President