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
counseling 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 counseling 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
counseling 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:
1. 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.
2. When such intrusion is justified it should be strictly
limited to the degree of intrusion necessitated by the employer's interests.
3. 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.
4. 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
.
5. `An employer rule requiring proof for every absence is
unreasonable if an absenteeism problem does not exist
6. A mere assertion by the person claiming to be sick is
not satisfactory proof.
7. The obligation to prove sickness, where the employer
requires proof, rests with the employee.
8. 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.
9. 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.
10. 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.
11. 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 counseling 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 labor relation's point of view.
Determining whether
counseling 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 labor relation's context innocent absenteeism
and culpable absenteeism are mutually exclusive. One in no way affects the
other.
Counseling 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:
1.
Initial
counseling(s)
2.
Written
counseling(s)
3.
Reduction(s) of
hours and/or job reclassification
4.
Discharge
Initial Counseling
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 Counseling
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.
1.
Has the employee
done everything possible to regain their health and return to work?
2.
Has the employer
provided every assistance possible? (i.e. counselling, support, time off.)
3.
Has the employer
informed the employee of the unworkable situation resulting from their
sickness?
4.
Has the employer
attempted to accommodate the employee by offering a more suitable position (if
available) or a reduction of hours?
5.
Has enough time
elapsed to allow for every possible chance of recovery?
6.
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.
1.
The absences must
be shown to be clearly excessive.
2.
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]
1.
Initial
Warning(s)
2.
Written
Warning(s)
3.
Suspension(s)
4.
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 counseling 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.
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