By Howard Ehrlich

Proper management of employee absenteeism is a significant challenge facing human resource managers.  There are no “off-the-shelf” remedies applicable to every situation, and strategies must be tailored to the facts and circumstances of each case.

There is, however, a legal framework that can assist managers in dealing with absenteeism more effectively.

Dealing with absenteeism often involves human rights considerations.  In some cases absenteeism is caused by a protected disability under the Human Rights Code.  Some of the recognized disabilities are alcoholism and drug addiction, depression, and chronic fatigue syndrome.  Claims that a disability is the cause of absenteeism are on the up-swing, and can be difficult to manage because there is a requirement to accommodate the disabled employee to the point of “undue hardship”. 

An appropriate balance must be struck between managing absenteeism and accommodating disabled employees.  The difficulty in many cases is deciding whether or not a protected disability is causing the absenteeism. 

The framework below will assist employers in dealing with attendance management issues.  While the legal tests for union and non-union employees are different, common principles apply.  It is important to note that there are two types of absenteeism: “innocent” or “non-culpable” absenteeism, where employees are absent for reasons beyond their control (such as illness) and “culpable” absenteeism, where employees are wilfully absent.  Many employees will present a mix of innocent and culpable absenteeism issues.  Innocent absenteeism often presents more of a challenge than culpable absenteeism, as it cannot be dealt with by classic disciplinary measures, and it can raise issues of accommodation. 

The Framework

1. Establish Employee’s Absenteeism is Excessive
To show that an employee’s absenteeism is excessive, the employer must be able to point to a reasonable attendance standard with which to compare the employee’s absenteeism record.  What makes an attendance standard reasonable?  There are a number of factors to be considered:

(1) The standard should be realistic in the workplace and not simply an arbitrary number;

(2) The standard should take into account not only the individual’s absenteeism, but also the average absenteeism of the workplace as a whole and the average absenteeism of employees by department, ideally over a “rolling” time period;

(3) The standard should differentiate between different types of absences, excluding those that may not accurately reflect the normal rate of absenteeism in the workplace, such as long term disability;

(4) Absences due to disability should not be measured against the average of the entire workplace, as this may violate human rights legislation;

(5) When using a specific period of time to calculate a standard, the absenteeism of the employee should be assessed over the same length of time;

(6) The number of occurrences of absenteeism should be considered as well as the actual number of missed days; and

(7) The standard should not be lower than the employee’s contractual or legislative entitlements to time off work, for example, the number of annual sick days allowed.

2. Warn Employee that Absenteeism is Excessive
This can be done in number of ways, including by letter or in face-to-face meetings.  The key is to outline the employee’s absenteeism, advise the employee that the absenteeism rate is unacceptable, set out the reasons why the employee’s absenteeism is a problem, and advise the employee that the employee’s job may be at risk as a result of excessive absenteeism.  Although warnings cannot be disciplinary in nature with innocent absenteeism, it can be emphasized that discharge may be justified if the employee’s attendance does not improve and it appears unlikely the employee will be capable of regular attendance in the future.

3. Provide Reasonable Assistance and Accommodation
This may include a number of actions including employee counselling, altering the employee’s schedule or job duties, offering part-time work, or providing funds for rehabilitation.

4. Ensure any Termination Complies with Contractual and Legal Obligations 

These obligations may flow from a number of sources including employment contracts, the collective agreement, benefit plans, or employment standards, workers compensation, and human rights legislation. Employers must also be careful with what is included and excluded in absenteeism calculations.  For example, WCB absences and properly authorized leaves of absence are normally not included.

5. Ensure that There is No Reasonable Prospect that the Employee will Attend Regularly in the Future 

To justify an employee’s termination for excessive absenteeism, the employer must be able to show that there is no reasonable prospect that the employee’s attendance will improve in the foreseeable future.  This decision must be based on appropriate medical information.

Dealing with absenteeism is a long-term project.  To effectively deal with all of the issues, employers must have a comprehensive game plan in place that addresses the issues in a preventative and remedial fashion.  This can take the form of an express attendance management program or policy, or it can simply be an unpublished procedure used to guide the employer’s response to absenteeism.  Whatever route is chosen, absenteeism must be managed properly because it has tremendous adverse financial and employee morale effects. 

Howard Ehrlich, Partner in Bull, Housser & Tupper LLP’s Labour & Employment Law Group is an acknowledged expert in his field. Howard has contributed to dozens of course manuals and journals, and made presentations to a variety of clients, professional groups and employment-oriented organizations on labour and employment law issues. He holds a Bachelor of Laws degree from UBC and and Master of Laws Degree from SMU Dedman School of Law (Dallas), has completed the program of Instruction For Lawyers (Mediation Workshop) at Harvard. He is a Past Adjunct Professor, UBC Law School and a past regular columnist for Business in Vancouver.