Everyone will get sick. And everyone is different.
Age, gender, diet, genetics, job duties, working environment, as well as other physical and psychological factors all have an impact on how often, and how severe, an individual will fall ill.
It is unavoidable. According to one Conference Board of Canada report, unionized private sector employees called in sick an average of 12.8 days per year. Thus, Employers need to expect absenteeism as a normal event when operating a business. Conversely, Employees must expect their absences to be tracked and managed by their Employer.
At the Co-op Refinery, the Union has agreed to paid sick leave benefits that accrue and renew annually. This benefit for the Co-op allows Employees paid time off from work to seek the appropriate medical care to recover from illness or injury, instead of reporting for work and potentially exposing a large group of employees if contagious. This is particularly relevant during a pandemic, but still applicable to cold and flu season.
Arbitrators have ruled Employers in a unionized workplace have the right to institute Attendance Management Programs (AMP) designed to improve attendance without the union’s endorsement as long as it satisfies the “KVP” test or principles (named for the arbitration case in which it was first enunciated).
This KVP test has five key components:
- The AMP is not inconsistent with the collective agreement
- It is not unreasonable
- It is both clear and unequivocal
- The employer brings the AMP to the attention of employees before acting on it
- And the employer enforces the AMP consistently
AMPs are shown to pass the KVP test as long as it includes sufficient flexibility and discretion to permit it to be administered with consistent fairness and due regard for individual circumstances.
Traditionally AMPs try to use various tools to essentially discourage workers from using legitimate sick leave. This blurs the line between culpable and non-culpable absenteeism. We will define those terms in a minute, but the difference between the two is distinct for the purposes of adjudicating the legality or reasonableness of an AMP. When an Employer fails to differentiate between the two, all absenteeism is treated under the disciplinary metric. This places a reverse onus on the Employee to prove the innocence of their absence, which is the anti-thesis of a just-cause system. Taken as a whole, this unreasonable approach violates the KVP principles and overrules the Employer’s right to manage attendance.
What is culpable and non-culpable absenteeism?
Culpable absenteeism is absences within the Employee’s power to control and correct – and is thus “blameworthy” absenteeism for which the Employer can hold the Employee responsible and typically leads to a progressive discipline response. Common
examples of culpable absenteeism include absences due to sleeping in, hangovers, leaving work without permission, fraudulent applications for sick leave benefits, and failing to notify the employer of an absence.
Non-culpable, or innocent, absenteeism is not fault based (for example, the Employer doesn’t suggest an Employee abused sick leave entitlements) or blameworthy and typically mandates a non-disciplinary response. Innocent absenteeism could be related to an Employee’s membership in a group protected by human rights legislation (for example, Union Leave cannot be included). AMP are introduced into workplaces solely to support these types of absences.
While both types of absenteeism can lead to termination, the routes are wildly different. For the Employer to terminate an employee on the basis of innocent absenteeism, it must establish the Employee’s absenteeism is extreme when measured against a reasonable standard and there’s little, if any, likelihood of improvement in the future. This process is not quick, as Employees must be given every opportunity to improve and the supports required, including accommodation up to undue hardship, to improve attendance.
The main takeaway is while under the scope of management rights, every AMP must be looked at through a lens of reasonableness in conjunction with the KVP principles. Therefore, all policies must be reasonable and not mix discipline with what the true intention of an AMP, and that’s to support the health and safety of Employees in the workplace.
594 Law Committee
