Attendance Management - working together

Guidelines for Absenteeism Control

There are two types of absenteeism, each of which requires a different type of approach.

1. Innocent Absenteeism

Innocent absenteeism refers to employees who are absent for reasons beyond their control; like sickness and injury. Innocent absenteeism is not culpable which means that it is blameless. In a labour relations context this means that it cannot be remedied or treated by disciplinary measures.

2. Culpable Absenteeism

Culpable absenteeism refers to employees who are absent without authorization for reasons which are within their control. For instance, an employee who is on sick leave even though he/she is not sick, and it can be proven that the employee was not sick, is guilty of culpable absenteeism. To be culpable is to be blameworthy. In a labour relations context this means that progressive discipline can be applied.

For the large majority of employees, absenteeism is legitimate, innocent absenteeism which occurs infrequently. Procedures for disciplinary action apply only to culpable absenteeism. Many organizations take the view that through the process of individual absentee counselling and treatment, the majority of employees will overcome their problems and return to an acceptable level of regular attendance.

Identifying Excessive Absenteeism

Attendance records should be reviewed regularly to be sure that an employee's sick-leave days are excessive compared to other employees. If a supervisor suspects that an employee is excessively absent, this can be confirmed through reviewing the attendance records.

If all indications show that an employee is excessively absent, the next step is to gather as much information as possible in order to get a clearer picture of the situation. The employees' files should be reviewed and the employees immediate supervisor should document all available information on the particular employee's history.

Individual Communication

After all available information has been gathered, the administrator or supervisor should individually meet with each employee whom has been identified as having higher than average or questionable (or pattern) absences. This first meeting should be used to bring concerns regarding attendance to the employee's attention. It is also an opportunity to discuss with the employee, in some depth, the causes of his or her attendance problem and possible steps he or she can take to remedy or control the absences. Listen carefully to the employee's responses.

The tone of the meeting should not be adversarial, but a major purpose of the interview is to let the employee know that management treats attendance as a very important component of overall work performance. Keep your comments non-threatening and work-oriented. Stick to the facts (i.e. patters, profiles, rates etc.). The employee should be given a copy of there attendance report with absences highlighted for discussion.

This interview will give you the opportunity to explore in depth with the employee the reasons for his or her absence. Gather facts - do not make any assumptions. Provide support and counselling and offer guidance as the occasion demands to assist the employee to deal with the specific cause of the absence.

Often, after the initial meeting employees reduce their absenteeism. The meeting shows that you are concerned and that absenteeism is taken seriously. The employee's attendance should be closely monitored until it has been reduced to acceptable levels. Appropriate counselling should take place as is thought necessary. If a marked improvement has been shown, commend the employee. The meeting should be documented and a copy placed in the employee's file.

Proof of Illness

Sometimes it is helpful in counselling employees with excessive innocent or culpable absenteeism to inquire or verify the nature and reasons of their absence.

The extent to which an employer may inquire into the nature of and reasons for an employee's absence from the workplace is a delicate issue. The concepts of an employee's privacy and an employer's need for information affecting the workplace often come into conflict. Seldom is the conflict more difficult to resolve than where personal medical information is involved.

Unions will often strongly object to any efforts by management to inquire more deeply into the nature of an employee's illness. You will need to consider the restraints of any language in collective agreements in relation to this issue.

Generally speaking, however, the following "rules of thumb" can be derived from the existing jurisprudence:

There is a prevailing right to privacy on the part of an employee unless the employer can demonstrate that its legitimate business interests necessitate some intrusion into the employee's personal affairs.
When such intrusion is justified it should be strictly limited to the degree of intrusion necessitated by the employer's interests.
An employee has a duty to notify his employer of an intended absence, the cause of the absence and its expected duration. This information is required by the employer to meet its legitimate concerns to have at its disposal facts which will enable it to schedule work and organize its operation.
An absent employee has an obligation to provide his employer with information regarding any change to his condition or circumstances relating to it which may affect the employer's needs as described in item #3 above. As such, the interests of the employer in having this information outweighs the individual employee's right to privacy.
An employer rule requiring proof for every absence is unreasonable if an absenteeism problem does not exist.
A mere assertion by the person claiming to be sick is not satisfactory proof.
The obligation to prove sickness, where the employer requires proof, rests with the employee.
An employer is entitled upon reasonable and probable grounds to refuse to accept a physician's certificate until it contains sufficient information to satisfy the employer's reservations. (i.e. seen by physician, some indication of return to work, etc.). Non-production of a required medical certificate could result in loss of pay until the certificate is produced.
Where a medical certificate is rejected by an employer (as in #8 above) the employer must state the grounds for rejection and must point out to the employee what it requires to satisfy the onus of proof.
An employer may require an employee to prove fitness for work where it has reasonable grounds to do so. In a health care setting the nature of the employer's business gives it a reasonably irresistible interest in this personal information for the purpose of assessing fitness.
Where any unusual circumstances raise reasonable suspicion that an employee might have committed an abuse of an income protection program an employer may require an employee to explain such circumstances. For example, an employer may require responses as to whether the illness confined an employee to his/her bed or home; whether an employee engaged in any outside activity and the reasons for the activity.

In summary then, any intrusion into the employee's privacy must be shown to be reasonable, based on the individual circumstances and in relation to the operation of the employer's business. If income protection abuse is suspected the extent to which such intrusion is "reasonable" would be far greater than in the case where it is not. If you are not clear on whether an inquiry is legally justified it is advisable to consult your superior.

After the Initial Interview

If after the initial interview, enough time and counselling efforts, as appropriate, have passed and the employee's absenteeism has not improved, it may be necessary to take further action. Further action must be handled with extreme caution - a mistake in approach, timing or severity can be crippling from both an administration and labour relation's point of view.

Determining whether counselling or disciplinary action is appropriate, depends on whether the employee's absences are innocent or culpable. If the employee's absenteeism is made up of both innocent and culpable absences, then each type must be dealt with as a separate issue. In a labour relation's context innocent absenteeism and culpable absenteeism are mutually exclusive. One in no way affects the other.

Counselling Innocent Absenteeism

Innocent absenteeism is not blameworthy and therefore disciplinary action is not justified. It is obviously unfair to punish someone for conduct which is beyond his/her control. Absenteeism, no matter what the cause, imposes losses on the employer who is also not at fault. The damage suffered by the employer must be weighed against the employee's right to be sick. There is a point at which the employer's right to expect the employee to attend regularly and fulfill the employment contract will outweigh the employee's right to be sick. At such a point the termination of the employee may be justified, as will be discussed.

The procedure an employer may take for innocent absenteeism is as follows:

Initial counselling(s)
Written counselling(s)
Reduction(s) of hours and/or job reclassification
Discharge

Initial Counselling
Presuming you have communicated attendance expectations generally and have already identified an employee as a problem, you will have met with him or her as part of your attendance program and you should now continue to monitor the effect of these efforts on his or her attendance.

If the absences are intermittent, meet with the employee each time he/she returns to work. If absence is prolonged, keep in touch with the employee regularly and stay updated on the status of his/her condition. (Indicate your willingness to assist.)

You may require the employee to provide you with regular medical assessments. This will enable you to judge whether or not there is any likelihood of the employee providing regular attendance in future. Regular medical assessments will also give you an idea of what steps the employee is taking to seek medical or other assistance. Formal meetings in which verbal warnings are given should be given as appropriate and documented. If no improvement occurs written warning may be necessary.

Written Counselling
If the absences persist, you should meet with the employee formally and provide him/her with a letter of concern. If the absenteeism still continues to persist then the employee should be given a second letter of concern during another formal meeting. This letter would be stronger worded in that it would warn the employee that unless attendance improves, termination may be necessary.

Reduction(s) of hours and or job reclassification
In between the first and second letters the employee may be given the option to reduce his/her hours to better fit his/her personal circumstances. This option must be voluntarily accepted by the employee and cannot be offered as an ultimatum, as a reduction in hours is a reduction in pay and therefore can be looked upon as discipline.

If the nature of the illness or injury is such that the employee is unable to fulfill the requirements of his/her job, but could for example benefit from modified work, counsel the employee to bid on jobs of such type if they become available. (N.B. It is inadvisable to "build" a job around an employee's incapacitates particularly in a unionized environment. The onus should be on the employee to apply for an existing position within his/her capabilities.)

Discharge
Only when all the previously noted needs and conditions have been met and everything has been done to accommodate the employee can termination be considered. An Arbitrator would consider the following in ruling on an innocent absenteeism dismissal case.

Has the employee done everything possible to regain their health and return to work?
Has the employer provided every assistance possible? (i.e. counselling, support, time off.)
Has the employer informed the employee of the unworkable situation resulting from their sickness?
Has the employer attempted to accommodate the employee by offering a more suitable position (if available) or a reduction of hours?
Has enough time elapsed to allow for every possible chance of recovery?
Has the employer treated the employee prejudicially in any way?

As is evident, a great deal of time and effort must elapse before dismissal can take place.

These points would be used to substantiate or disprove the following two fold test.

The absences must be shown to be clearly excessive.
It must be proven that the employee will be unable to attend work on a regular basis in the future.

Corrective Action for Culpable Absenteeism

As already indicated, culpable absenteeism consists of absences where it can be demonstrated that the employee is not actually ill and is able to improve his/her attendance.

Presuming you have communicated attendance expectations generally, have identified the employee as a problem, have met with him/her as part of your attendance program, made your concerns on his specific absenteeism known and have offered counselling as appropriate, with no improvement despite your positive efforts, disciplinary procedures may be appropriate.

The procedures for corrective/progressive discipline for culpable absenteeism are generally the same as for other progressive discipline problems. The discipline should not be prejudicial in any way. The general procedure is as follows: [Utilizing counselling memorandum]

Initial Warning(s)
Written Warning(s)
Suspension(s)
Discharge

Verbal Warning
Formally meet with the employee and explain that income protection is to be used only when an employee is legitimately ill. Advise the employee that his/her attendance record must improve and be maintained at an improved level or further disciplinary action will result. Offer any counselling or guidance as is appropriate. Give further verbal warnings as required. Review the employee's income protection records at regular intervals. Where a marked improvement has been shown, commend the employee. Where there is no improvement a written warning should be issued.

Written Warning
Interview the employee again. Show him/her the statistics and point out that there has been no noticeable (or sufficient) improvement. Listen to the employee to see if there is a valid reason and offer any assistance you can. If no satisfactory explanation is given, advise the employee that he/she will be given a written warning. Be specific in your discussion with him/her and in the counselling memorandum as to the type of action to be taken and when it will be taken if the record does not improve. As soon as possible after this meeting provide the employee personally with the written warning and place a copy of his/her file. The written warning should identify any noticeable pattern

If the amount and/or pattern continues, the next step in progressive discipline may be a second, stronger written warning. Your decision to provide a second written warning as an alternative to proceeding to a higher level of discipline (i.e. suspension) will depend on a number of factors. Such factors are, the severity of the problem, the credibility of the employee's explanations, the employee's general work performance and length of service.

Suspension (only after consultation with the appropriate superiors)
If the problem of culpable absenteeism persists, following the next interview period and immediately following an absence, the employee should be interviewed and advised that he/she is to be suspended. The length of the suspension will depend again on the severity of the problem, the credibility of the employee's explanation, the employee's general work performance and length of service. Subsequent suspensions are optional depending on the above condition.

Dismissal (only after consultation with the appropriate superiors)
Dismissals should only be considered when all of the above conditions and procedures have been met. The employee, upon displaying no satisfactory improvement, would be dismissed on the grounds of his/her unwillingness to correct his/her absence record.