HR Professional - June/July 2008 - (Page 19)

L E GA L BY DAVID CÔTÉ TERMINATING CHRONICALLY ABSENT EMPLOYEES t is increasingly difficult to terminate employees for chronic absenteeism. The courts, arbitrators and human rights and employment standards adjudicators are more sensitive to ensuring employee rights are protected in chronic absenteeism cases. I Blameworthy vs. innocent absenteeism The law requires employers to deal with non-innocent or “blameworthy” absenteeism differently than innocent absenteeism. Employers must give employees an opportunity to correct blameworthy absenteeism through progressive discipline. If the employee doesn’t change, they risk termination. All of this changes for innocent absenteeism—or absences over which an employee has no control, such as illness. Innocent absenteeism doesn’t include such explanations as “my car wouldn’t start,” “my alarm clock didn’t ring” and “the babysitter didn’t show up on time.” According to employment law, these types of absences are preventable with planning. Human rights issues An employee’s innocent absenteeism may also be protected by human rights laws. In Ontario, these laws prohibit employment discrimination on the basis of age, disability, and family and marital status. Disability includes all chronic physical, mental and emotional impairments; family status means being in a parent and child relationship, and marital status includes traditional and common-law relationships. Thus, if an employee is absent because they are caring for a child, they may be protected by human rights laws, and because these laws have quasi-constitutional status, they take precedence over other laws, including progressive discipline. If your workplace is unionized, the collective agreement may contain rules speciﬁc to absenteeism, whether blameworthy or innocent. w w w. HRT houghtLeader. c om Employer options If the employee’s absenteeism is blameworthy, follow normal progressive disciplinary rules. Employers are more likely to successfully manage chronic absenteeism if they have well written and consistently enforced absenteeism policies. Employers with these policies shouldn’t have absenteeism rates higher than four per cent. Anything higher means your organization needs help managing absenteeism. In chronic innocent absenteeism cases, management should meet with the employee and conﬁrm: • Documented absenteeism is unacceptably high • The problem makes it difﬁcult to serve customers and puts a strain on co-workers • Counselling is required, and ultimately, termination may be necessary Management should conﬁrm everything in writing. If there’s no improvement, follow up with counselling, conﬁrmed in writing, and request a medical prognosis as to whether the employee is capable of regular future attendance. If the employee’s absenteeism still doesn’t improve, communicate that before the employee can return to work, they require a prognosis from their doctor conﬁrming they are capable of regular attendance. Management should provide the employee’s doctor with a job description and get conﬁrmation that they have reviewed the description and are aware of the patient’s poor absenteeism. Depending on the doctor’s response, consider these next steps: a) Do not permit the employee to return to work if they are unwilling to provide a prognosis. You are not ﬁring the employee but require a medical prognosis before they can return. b) If the prognosis for regular attendance is poor, consider termination. c) If the prognosis is good, but absenteeism remains high, consider requiring the employee to be assessed by an independent doctor, and obtain a prognosis. David Côté (dcote@coteandcompany.ca) is a labour and employment lawyer practising with Cote Professional Corporation. J u n e / J u l y 2 0 0 8 19 http://www.HRThoughtLeader.com

Table of Contents Feed for the Digital Edition of HR Professional - June/July 2008

HR Professional - June/July 2008 Contents Editor's Letter Contributors Leadership Matters Upfront Legal Compensation The Broad Perspective Leading by Example On Message Strategy Talent Management HR 101 Case Study Interview with J.P. Pawliw-Fry Off the Shelf The Last Word HR Suppliers Guide 2008 Calendar of Events

HR Professional - June/July 2008

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