Can an employer request a medical note for every employee absence from the workplace? Is it disciplinary to give an employee a warning letter for poor attendance at work? Should employers treat every employee absence from the workplace as suspicious?
These questions and more were answered in Bell Canada v Unifor, Local 6007, 2019 CanLII 6150 (“Bell Canada”) an Ontario labour arbitration decision issued earlier this year.
Bell Canada’s attendance management policy was ultimately struck down by the arbitrator as an unreasonable exercise of management rights and the company was given 90 days to institute a new, more appropriate policy.
The arbitrator found numerous faults with the policy and how Bell Canada implemented the policy, including:
- It was unclear to employees what documents and principles made up the policy. Documents containing vital information about how absenteeism was handled by the company were kept confidential to human resources and it was not clear how employees were to access the information they needed to ensure that they were complying with the policy;
- The policy did not define essential terms such as “absenteeism”, “excessive absenteeism”, “culpable absenteeism” and “innocent absenteeism”;
- The circumstances in which medical information could be requested from an employee, the kind of information that could be requested, how that information would be handled, and the consequences for failing to provide medical information were not clearly outlined; and
- The policy was aggressive and paternalistic in that every absence triggered review, there was no clear distinction between the management of culpable and non-culpable absenteeism, and medical information was requested for every absence past a certain threshold without regard to the individual circumstances of any individual case.
Takeaways for Employers
This case raises some key learning points for employers:
- Employers should carefully consider the needs of their specific workplace when determining how to manage attendance in the workplace. If culpable absenteeism has created workplace issues, then consider whether it is necessary to have a wide-ranging policy that aggressively manages innocent absenteeism. If your workplace has circumstances that give rise to a high level of short-term absences due to illnesses such as flu, consider whether presenteeism (when an employee attends work when too ill to do their job safely or effectively) does more workplace harm than sporadic absences.
- Policies should be carefully drafted. Clearly stated definitions, responsibilities and consequences will help all parties understand the objectives of the policy and their rights and obligations.
- Policies must be clearly communicated to employees and easily accessible to employees for review. Employers will not have a positive workplace attendance culture if there a perfectly drafted policy is kept hidden from employees.
Proper attendance management can help minimize the impact that absenteeism can have on workplace morale and productivity. Employers will be well served by following the principles set out in Bell Canada and taking the time to carefully draft and implement a tailored and reasonable attendance management policy.
To learn more about the Bell Canada decision and attendance management in the workplace, register for PooranLaw’s Attendance Management in Today’s Workplace webinar on September 26.
