Canadian Employment Law Today

Attendance management: Good intentions, discriminatory effects Employer's use of approved sick leave and family-related leave to enter employees in attendance management program discriminatory: Board BY JEFFREY R. SMITH A federal employer's attendance management program discrimi- nated against employees' family status and disabilities by includ- ing leaves for those reasons in the threshold for entering them in the program, the Cana- da Public Service Labour Relations and Em- ployment Board has ruled. Corrections Canada (CSC) implemented a national attendance management policy (NAMP) for employees of its correctional institutions in October 2011. e policy was designed to ensure effective communica - tions between employees and management about absences so CSC could accommodate any needs that contributed to the absences. It was meant to help employees improve their attendance rather than penalize them for absences. Managers were instructed to discuss absences with employees but not to seek medical diagnoses. Each month, managers and supervisors were to review employees' leaves and look for patterns. If a pattern was identified and an employee passed an absence threshold, the next step would be to interview the em - ployee regarding the reasons for the absence. Documentation for the interviews was to be stored in confidential employee files avail- able to supervisors only on a need-to-know basis. If the leave issues were addressed and not of concern, the matter ended there and didn't proceed to the next review period. If accommodation was identified, leave related to it wasn't included in the calcula - tion of the threshold. In the absence of ac- commodation, both sick leave and family- related leave were used to calculate whether an employee crossed the absence threshold requiring an interview. Medical and family-related leave part of calculation for attendance threshold Bonita Ebelher worked at the Bowden In- stitution in Bowden, Alta., from 2003 until her retirement in 2013. On April 25, 2012, her supervisor asked her to meet with him to discuss her attendance in the 2011-2012 fiscal year but she refused, saying her rea - sons for absences were between her and her doctor and the leave she took was permitted under the collective agreement. Soon after, she went on leave for three months due to a disability, for which she provided a medical note. A month after she returned to work, Eb - elher had a short meeting with her manager and was asked to meet with the deputy war- den, who was the NAMP co-ordinator for the institution — this time to discuss her three-month leave. She was then put on an attendance management plan where she was required to certify all sick leave within a reasonable time or it would be without pay. Ron Harrison had 30 years of service with CSC at the Bowden Institution and had a daughter with a serious mental illness. Because of his daughter's condition, some - times there were critical situations where Harrison had to leave work to attend to her or accompany her to medical appoint- ments. Harrison also had another daughter who had a serious heart condition for which he had to attend appointments because his wife couldn't take time off work. Also on April 25, 2012, Harrison was in - formed he had gone over the NAMP thresh- old due to the amount of family responsi- bility and sick leave he had taken. After meeting with Harrison, the deputy warden determined no attendance action plan was required, though his attendance would be monitored for any patterns of absences, de - spite the fact the manager was aware of his family situation. Kendra Haldorson also worked at the Bowden Institution and in the 2011-2012 fiscal year, she took 37.5 hours of family responsibility leave when her daughter re - quired emergency surgery. When this was added to 87.5 hours of sick leave she had used, she crossed the NAMP threshold and was required to meet with the deputy warden. She told the deputy warden about her daughter's illness and that her manager had told her to use her personal sick leave to cover some of the time needed to care for her daughter. e deputy warden deter - mined no further action was necessary. Candice Westbury, another Bowden employee, exceeded the NAMP threshold due to a negative sick leave balance from a seven-month disability leave in 2010. Her manager told her it was unfair to refer her to the NAMP due to her chronic illness and there was no need to explain her absences, but she was referred to the deputy warden anyway. e deputy warden advised West - bury her attendance would be monitored. Co-worker Gallagher Keough broke his foot and had surgery on it, requiring an eight-week absence from his job at Bowden — all certified sick leave. He returned for three months and then was off for another month for additional surgery. Keough's manager advised him she had no concerns due to his illness, but he received a letter in - dicating the meeting was documented un- der the NAMP, which would remain in his file for one year. Randi Bodnar used family responsibil- ity leave and vacation leave to care for her mother, who had a degenerative disease and ATTENDANCE MANAGEMENT programs are popular among employers for keeping an eye on employee absences and ensuring both good productivity levels and that employees who need accommodation are getting it — particularly for employers where employee absenteeism is a problem. However, such programs can walk a fine line where certain employee absences are related to grounds protected under human rights legislation. If such absences play a role in getting an employee entered into an attendance management program where she receives differential treatment, then it might be discrimination — whether the employer intended it or not. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: DISCRIMINATION

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