The Duty to Accommodate and Absenteeism – What to Do When Your Employees Miss Work Presented by: Cristina Wendel, Partner

August 14, 2013

Dentons Canada LLP

Outline

1. Sick or Lazy – Distinguishing Between Culpable and Non-Culpable Absenteeism

2. Managing Absenteeism and Accommodation - Duties and Responsibilities of Employers and Employees

3. Enough is Enough – Terminating the Employment Relationship

on the Basis of Frustration

Distinguishing Between Culpable and Non-Culpable Absenteeism

Do you have an Absenteeism Problem?

• Identify absences

• Check compliance with attendance management policy or procedure

• Find out the reasons for the absences

• Consider any patterns

Determine the Type of Absenteeism

• Culpable vs. non-culpable absenteeism

• Distinction is critical to determining how the absenteeism should be dealt with

• Cannot respond to culpable absenteeism in the same way as non-culpable

absenteeism

• Non-culpable absenteeism may engage the protections under the Alberta Human Rights Act

Culpable Absenteeism

• Absences that are within the employee’s control and for which there is no justifiable or reasonable excuse

• Absences which are avoidable with the exercise of reasonable diligence and responsibility

• Conduct that is blameworthy

• Examples: sleeping in, hangover

Non-Culpable Absenteeism

• Absences that are beyond the employee’s control

• Includes absences due to: • Disability (physical or mental) • Transient ailment

• Conduct that is innocent

• Examples: surgery, flu, severe migraines

Avoiding Absenteeism – General Strategies

• Wellness programs and initiatives

• Attendance Management Policy

Managing Absenteeism and Accommodation

Managing Culpable Absenteeism

• Identify chronic or excessive absenteeism

• Implement progressive discipline

• Develop and follow an Attendance Management Policy

Attendance Management Policy Basics

• Ensure the policy is known to employees including management and supervisors

• Ensure the policy is being consistently enforced

• Set out attendance expectations

• Provide for a reporting procedure

• Set out when medical evidence will be required and the nature of the evidence needed

• Set out the consequences of non-compliance

Managing Innocent Absenteeism

• Obtain information about the reason for the absence

• Transient ailments

• provide warnings • offer assistance

• Disability • cannot discriminate • follow accommodation process

What is Workplace Accommodation?

• Workplace accommodation is the requirement to make reasonable changes and adjustments to the workplace to avoid a negative impact on an employee in relation to a protected ground

• The purpose is to ensure equal treatment to employees without discrimination

What are the Employer’s Duties in the Workplace Accommodation Process?

• Employers have the primary duty and responsibility to make reasonable efforts to the point of undue hardship to accommodate employees who face barriers and discrimination in their employment based on the protected grounds

What is Involved in Satisfying the Employer’s Duties?

• Initiating the accommodation process

• Determining if or how the employee can be accommodated

• Reviewing/requesting/obtaining appropriate medical information

• Discussing accommodation options with the employee

• Considering the employee’s reasonable concerns and suggestions regarding accommodation

• Implementing accommodation

What is Involved in Satisfying the Employer’s Duties?

• Training and managing staff – management, supervisors and coworkers

• Treating the employee with respect and dignity

• Respecting the employee’s privacy

• Being flexible and creative when developing accommodation options

• Having ongoing follow-up and flexibility

• Justifying a refusal to accommodate

What are the Employee’s Duties in the Workplace Accommodation Process?

• An employee seeking accommodation in the workplace has the duty to: • Inform the employer of the need for accommodation • Provide the employer with sufficient and appropriate information • Actively participate and cooperate with the employer in the accommodation

process • Facilitate the implementation of a reasonable accommodation proposal • Accept reasonable accommodation

What Role do Unions Play in the Workplace Accommodation Process?

• May share the employer’s responsibility to provide reasonable accommodation

• Cannot rely on the collective agreement to avoid the duty to accommodate

• May be in breach of human rights obligations if they sign a collective agreement containing a discriminatory clause or if they stand in the way of a reasonable accommodation proposal

To What Extent is Workplace Accommodation Required?

• Accommodation is required to the point of undue hardship

• What is undue hardship? • No clear definition • Case by case basis • The hardship must be substantial – i.e. some degree of hardship is

acceptable

What Factors May Be Considered in Assessing Undue Hardship?

• Financial costs • Size and resources of the employer • The disruption of operations • The effect on employee morale • Whether the accommodation would have a substantial interference on

the rights of others or on a collective agreement • The nature and interchangeability of the workforce and facilities • Health and safety issues

Scenarios and Solutions

• What if an employee fails to request accommodation?

• What if an employer fails to provide accommodation?

• Is the search for workplace accommodation limited to the employee’s existing position?

• What if the employee requires additional training to be able to fulfill the accommodated position?

• Does the employee have to be paid the same?

• Can an employee be displaced in order to accommodate another employee?

• What if an employee refuses an accommodation proposal?

• When can an employer terminate an employee’s employment for frustration?

Frustration – Terminating the Employment Relationship

How can an Employment Relationship Come to an End?

• Termination by the employer • with cause • without cause

• Resignation by the employee

• Frustration

What is Frustration?

• Frustration is a contract law doctrine which brings the contact to an end

• Frustration requires: • Change of circumstances • Unforeseen or not reasonably foreseeable • Rendering the effect of the contract completely different from what the parties

intended

• With frustration, the subject matter of the contract has been destroyed

Frustration in the Employment Law Context

• Employment relationship is a contract

• Doctrine of frustration can bring the employment relationship to an end

Significance of a Finding that the Employment Relationship has been Frustrated

• No obligation to provide reasonable notice or pay in lieu

• Employer may have reached the point of undue hardship in the accommodation process

Examples of Events that may Constitute Frustration

• Death of employee

• Employee’s loss of a required designation or qualification

• Permanent illness or disability

Frustration by way of a Permanent Illness or Disability

• Key Question: Is the employee suffering from a permanent illness or disability which ought to bring the employment relationship to an end?

What is Permanent?

• Continuing or enduring without a marked change in status or condition

• Employer needs to be satisfied based on solid, documented evidence that the illness or disability is permanent

• Being on long term disability benefits is not enough

How Long Must an Employee be off Work?

• Fact driven inquiry

• Usually fairly long period of time (over 2 years)

Effect of Automatic Termination Clauses

• May be considered discriminatory

• May provide some evidence of parties’ intentions

Effect of Availability of Short and Long Term Disability Benefits on Frustration

• Courts are often reluctant to apply the doctrine of frustration where disability benefits are available to the employee

• The availability of long term disability benefits indicates that long absences were contemplated by the parties

Summary

• Step 1 - Identify absenteeism problem – culpable or non-culpable

• Step 2 - Manage absenteeism problem – discipline or accommodation

• Step 3 - Last resort – consider if employment relationship has been frustrated

Questions?

Cristina Wendel Dentons Canada LLP Barristers and Solicitors 2900, 10180-101 Street

Edmonton, AB T5J 3V5

Direct Phone: 780-423-7353

Fax: 780-423-7276

Email: cristina.wendel@dentons.com

The preceding presentation contains examples of the kinds of issues employers could face. If you are faced with one of these issues, please retain professional assistance as each situation is unique.

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