By Marcia McNeil

Persistent or excessive absenteeism is one of the most common and frustrating issues faced by employers.  While all employers recognize that sometimes absences are unavoidable, poor attendance by employees can affect the bottom line by negatively impacting productivity, work quality, morale and customer service and satisfaction.  More fundamentally, excessive absenteeism strikes at the heart of the employment bargain – that employers pay employees in exchange for work.

However, despite the toll that absenteeism can take in the workplace, employers are not without legal and practical options to improve attendance and effectively manage absenteeism. 

Innocent or Blameworthy?

First, it is important to distinguish between the two major types of absences which, under the law, must be dealt with in different ways:

1) Blameworthy, or culpable, absenteeism occurs when an employee fails to attend work without a reasonable explanation.  For example, an employee who sleeps through her alarm clock, or takes a sick day when she is not sick, is engaged in culpable absenteeism.

2) Innocent, or non-culpable, absenteeism occurs when an employee is, for reasons outside her control, not able to work.  For example, an employee who cannot perform her duties at work due to illness or injury is absent for non-culpable reasons.

When dealing with culpable absences, the appropriate response is progressive discipline. The right disciplinary response will depend on the circumstances, including the employee’s overall employment record, length of service, the nature and severity of the incident(s), and how similar situations have been treated in the past.

More commonly, however, employers must manage innocent absenteeism.  Since an innocent absence is not the fault of the employee, discipline, such as a suspension or termination, is not an appropriate response.  Further, if the employee’s absences are related to a disability, the employer has an obligation under human rights law not to discriminate against the employee and to accommodate the employee’s disability, including disability-related absences, up to the point of undue hardship.

How to Manage Innocent Absenteeism

To effectively manage innocent absenteeism in the workplace, employers must have a consistent plan in place or, ideally, a formal attendance management policy.  While the legal tests applicable to union and non-union employees differ, the following key steps should be part of any attendance management plan:

1) Communicate Attendance Expectations
While it may seem obvious, a clear, consistent message that regular attendance and starting on time are key job requirements can go a long way to prevent and manage absenteeism.

2) Ask the Right Questions
All employees should be asked for information which justifies their absences from work.  If the absence is due to an illness or injury, employees should be required to provide evidence from their physician to support their need for time off.  The scope of medical information that an employer can request is limited under personal information protection legislation but should, at a minimum:

?  support that the employee is unable to work for medical reasons;

?  provide a likely return to work date (and, if applicable, any accommodation required for the employee’s return to work).

3) Don’t Ignore The Problem
In a busy workplace, it can be easy to let attendance issues slide.  However, it is important to request information from all employees to support their absences.  Such requests not only reinforce the message that good attendance is expected and important, but also provide the employer with the information it needs to choose the appropriate courses of action.

4) Accommodate any Disability
Under human rights law, an employer must accommodate an employee’s disability, including disability-related absences, up to the point of undue hardship.  Accommodation will be based on the information provided by the employee’s physician, and may include temporarily or permanently waiving or modifying attendance expectations, altering job duties or functions or scheduling part-time work.

5) Is the Absenteeism Excessive?
If an employee appears to have excessive absenteeism, compare her attendance to a reasonable attendance standard.  What is reasonable will depend on the employee’s position and the workplace.  For example, it may be the average attendance of others in the same or similar positions.  However, keep in mind that the standard may need to be modified to accommodate an employee’s disability.  In addition, employers should not include vacations, absences covered by employment standards legislation or other contractual or statutory rights to time off when determining an employee’s level of absenteeism.

6) Meet with the Employee
If the employee’s absenteeism is excessive compared to the reasonable standard, the employer should meet with her, communicate the expected attendance standard, and warn her about the consequences of failing to meet the standard in the future, including possible termination of employment.

7) Carefully Consider Whether Termination is Appropriate
If an employee’s attendance continues to be excessive, despite warnings and accommodation, the employer may reach the point where it considers termination for excessive non-culpable absenteeism.  However, given the significant liability of a wrongful dismissal claim and/or discrimination complaint, employers should undertake such a decision carefully.  Termination for excessive non-culpable absenteeism should only be made on the basis of clear medical information showing that the employee has no reasonable prospect of regular attendance in the future and after the employer determines that any disability-related absences cannot be accommodated short of undue hardship.

In short, effectively managing absenteeism and improving attendance in the workplace requires consistency, patience and a careful consideration of the applicable legal framework.  However, the benefits of meeting the challenge – in improved productivity, morale and minimizing legal risks – are undoubtedly worthwhile.

Marcia McNeil and Sean Steele are presenting Workplace Attendance Management in Vancouver on February 17, 2011. For more information on this and other professional development opportunities, please refer to BC HRMA’s online calendar.

Marcia McNeil, Partner in Heenan Blaikie’s Labour and Employment Group represents clients in the private and public sectors, particularly municipalities, police services boards and high-tech companies.  She has frequently appeared before British Columbia’s Supreme Court and Court of Appeal, as well as before administrative tribunals, including the provincial and federal Human Rights Tribunal, labour arbitrators and the B.C. Labour Relations Board.  Marcia is also the Chair of the B.C. Industry Training Appeal Board and formerly the Vice-Chair of the Community Care and Assisted Living Appeal Board of British Columbia.