Publication
10 of the Top Employers’ Attendance Management Problems
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August 13, 2015
By Katie Roebothan, Former Lawyer at McInnes Cooper
The employment contract, at its core, is an exchange of work for compensation. So at a very basic level, employers are entitled to expect regular ongoing attendance from their employees. Yet poor attendance – and high absenteeism – is one of the most common and difficult employment problems an employer must manage.
There are many kinds of absence. Some, like vacation and statutory holidays, are generally considered beneficial for the employer and the employee and since they’re usually scheduled, the organization can absorb their impact fairly easily. Others, like absences caused by illness, family-related demands and inclement weather, are generally unavoidable and though unscheduled, are expected to some degree. And then there are the absences that are avoidable, habitual and unscheduled – irritating to employers and co-workers, disruptive to work scheduling and output, and costly to the employer and the economy.
Absenteeism is an increasingly onerous and costly challenge for employers. Managing it requires knowledge and consideration of an entire realm of legal issues and schemes, including contract law and human rights and workers’ compensation legislation, because even if an employer satisfies its obligations under one, it may still have unsatisfied obligations under another.
Here are 10 of the top employers’ attendance – and absenteeism – management problems, and some tips to help employers deal with them.
- No plan. Most employers know that implementing an absenteeism management program will reduce the incidence and duration of absences and the related costs and management time, while increasing productivity. Yet many have no plan to manage absenteeism. A first step is to collect evidence and figure out whether there is an absenteeism problem, and if so, how big and what kind. An evidence-based view allows the employer to clearly identify the challenges and the financial repercussions so it can determine what it can spend to create a positive return.
- No policy. Many employers have either no attendance management policy, or have an outdated one. No policy results in ad hoc decision-making, and ultimately, inconsistency. There are some legal requirements for Attendance Management Policies and they’re a little different depending on whether or not the workplace is unionized. An employer should develop and implement new attendance management policies and programs (or refine existing ones) that are consistent with its legal realities and tailored to fit its organization, attendance issues and objectives.
- No distinction between innocent & culpable absenteeism. For many employers, an absence is an absence. However, the law distinguishes between these two kinds of absences and employers should too:
- “Innocent” absences are those beyond the employee’s control; they might flow from a “disability”, as defined in human rights legislation and which elicits the employer’s duty to accommodate, or they may be caused by transient, unrelated conditions that don’t qualify as a “disability”. Employers should handle innocent absenteeism in a non-disciplinary manner, through an accommodation process for disabilities or progressive coaching for other innocent reasons.
- “Culpable” absences are those within the employee’s control, for which there is no reasonable excuse and that are generally avoidable with reasonable diligence (like oversleeping). They can include casual absences without any (or unsatisfactory) medical verification that the employer considers unreasonable (like absences before or after a long weekend). Employers should handle culpable absenteeism as they do other disciplinary conduct: with progressive discipline.
- Poor absenteeism administration. Often, those charged with the responsibility to manage absenteeism have no (or insufficient) training or support tools to do the job. Organizations need to direct resources to equip managers and HR support with the time, tools and knowledge they need to carry out the important task of attendance management. In particular, it’s critical to create and implement the frameworks to systematically administer the absenteeism management process and to address tasks such as reviewing metrics reviews, following up with employees, monitoring absences and collecting medical information.
- Fear of Doctors. Getting more than that little Dr.’s note is the most common practical problem. Employers have the right to be fully informed of the basis for an employee’s inability to meet her obligation to provide regular ongoing attendance and of any work limitations and modifications required for her to perform her job. Access to timely and effective medical information from employees and their medical advisors is critical to an organization’s ability to respond to its business and legal compliance interests in managing absenteeism issues. Securing such information, however, is a constant challenge. Many employers make ineffective use of medical resources to verify absences because they are reluctant to seek medical verification at all or simply accept doctor’s notes at face value. The type and amount of information to which the employer is entitled varies with the circumstances, like whether the absences arise from a “disability” or not – but the employer is generally entitled to receive some information about what kept the employee from performing her duties. Generally, employers should obtain as much medical information as legally possible in the circumstances, while ensuring employees’ privacy interests are protected. Employers should also document initiatives to access the information and all employee responses; this will help it to support any action it might ultimately take.
- Poor Workers’ Compensation Administration. Workers’ compensation can come into play if the injury causing the employee’s absence arose out of and in the course of employment. The workers’ compensation scheme is complex and many employers struggle with managing such claims as they do managing other absenteeism cases. As a result, employers often fail to respond to bogus workers’ compensation claims and accept all claims at face value. Workers’ compensation legislation typically requires employers to re-employ injured workers in their pre-injury or in another suitable position, and specifically requires them to accommodate workers to the point of undue hardship – usually with a legal presumption that, if the employer terminates the worker’s employment within a specified time after re-employment, it hasn’t fulfilled its obligations. Therefore, effective administration of workers’ compensation claims, including responding to the bogus ones, is an important piece of overall attendance management.
- Weak Accommodation Process and/or Policy. Some absenteeism will likely flow from a disability protected under human rights legislation, eliciting the employer’s duty to accommodate. Yet often, employers don’t have a good understanding of the duty to accommodate and there’s no – or a weak – accommodation process or policy in place. This can lead to granting accommodation requests too loosely or conversely, rejecting legitimate ones too rigidly – both of which can be problematic. A meaningful integration of the duty to accommodate into the employer’s culture and policies is necessary for effective overall absenteeism management. This requires understanding the scope and limits of the duty to accommodate and accepting its impact on absenteeism management. This further requires appropriate use of expert professional advice, commonsense and compassion, and staying current on evolving human rights law.
- Reliance on Third Party Decision Makers. When there are absenteeism issues, there are often other organizations involved, most frequently workers’ compensation authorities, short-term disability advisors or consultants, and sometimes long-term disability insurers or outside administrators. Often, employers rely on and adopt their decisions; for example, if an insurer denies an employee’s long-term disability benefits, the employer sometimes relies on that decision to conclude the employee isn’t disabled and therefore, the employer has no duty to accommodate under human rights legislation. But that’s not necessarily true. It’s important to remember that another organization is likely dealing with its own particular legislation or contractual language; for example, that LTD insurer is really deciding that the particular employee doesn’t satisfy the definitions and/or conditions of the LTD policy (which is a contract), a decision that doesn’t take into consideration the employer’s obligations under human rights legislation. The employer may be able to consider the decisions of such third parties and may even be able to obtain additional medical or other information from them to consider in its decision – but the employer can’t offload its decision on them; it must consider its own obligations to the employee and make its own decision.
- “No good deed goes unpunished”. Many employers let things go, maybe because they haven’t put the processes and resources in place to manage absenteeism, or maybe because immediate supervisors, on whom the practical responsibility to manage absenteeism often falls, are uncomfortable, unwilling, untrained, too busy – or just too nice – to act. But allowing absenteeism to go unchecked, with no or inconsistent responses, makes it difficult for the employer to later assert its rights, and decreases the effectiveness of any policy. It’s imperative that employers consistently enforce their rights to regular employee attendance and to receive proper notification and information from employees. Supervisors often know an employee is absent and are best positioned to understand the surrounding circumstances and notice a problem early on. Their involvement is thus necessary to the success of attendance management. Senior management must fully support supervisors with the training and tools necessary to ensure they are engaged, comfortable and competent in this role and ultimately that attendance management is enforced in a consistent manner.
- Termination Avoidance – or Impatience. What can employers do about lengthy absences or employees with a history of chronic absenteeism? Out of sight is sometimes out of mind: an employee has been on sick leave for two years, there has been no contact, and both seem content – until the employee suddenly reports to work, and the employer doesn’t know what to do. Or, the employer (impatiently) asks: “We’ve done all we can, but the employee still can’t show up for work and perform the required tasks and we need that job filled. Can we let her go now?” The factors employers should consider before terminating employment or taking the position the employment contract is at an end (or “frustrated”, in legal parlance) due to chronic absenteeism, and how they should approach doing so, will differ depending on the circumstances (including whether the absenteeism is caused by transient illness or a disability). Courts are reluctant to apply the concept of frustration of the employment contract to the modern employment relationship which includes, for example, STD and LTD provisions, given employers have anticipated an employee might become disabled in the course of her employment. Avoiding an employee doesn’t end the employment relationship, so it’s critical that the employer monitor the employee’s absence so it can take appropriate action at the appropriate time. It’s equally important to be patient: lengthy absence is required to rely on frustration of contract, though just how lengthy depends on the particular circumstances. The key: manage the absence so the employer knows when and how to act.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Labour & Employment Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
© McInnes Cooper, 2015. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.
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