Absenteeism June 2014

Absence from a legal perspective and how to

minimize it

by Toronto Training and HR

June 2014

CONTENTS3-4 Introduction5-6 Causes of absence7-8 Measures9-11 Costs of absence12-13 Interventions14-16 What will make employees turn up?17-20 Strategies for employers21-24 Culpable absenteeism25-32 Innocent absenteeism33-34 Dismissal and termination35-36 The Human Rights Code37-38 Workplace Safety and Insurance Act39-42 Emergency leave and medical leave43-44 The employer’s right to information45-48 How much is too much?49-50 Conclusion, summary and questions

Introduction

Introduction to Toronto Training and HR

Toronto Training and HR is a specialist training and human resources consultancy headed by Timothy Holden 10 years in banking15 years in training and human resourcesFreelance practitioner since 2006The core services provided by Toronto Training and HR are:

Training event designTraining event deliveryHR support with an emphasis on reducing costs, saving time plus improving employee engagement and moraleServices for job seekers

Causes of absence

• Manual workers• Non-manual workers

Measures

Measures • ‘Lost time’ rate• Frequency rate• Bradford factor

Costs of absence

Costs of absence 1 of 2

• Training• Overtime• Operational

inefficiencies caused by substitute employees performing unfamiliar jobs

• Safety issues arising from substitute employees performing unfamiliar jobs

• Reduced customer satisfaction due to increased employee turnover

Costs of absence 2 of 2

• Increased management and administrative time in managing the absence

• Reduced productivity• Delayed production

schedules or missed deadlines

• Increased costs for health cover and sick leave policies that provide compensation for the absent employee Page 11

Interventions

Interventions • Short-term absence

• Long-term absence

What will make employees turn up?

What will make employees turn up? 1 of 2

• Physical workplace• Work and social

atmosphere• Health, financial and

family benefits• Vacation time and time

off• Employee

communication• Performance

management• Training and skills

development• Community

involvement

What will make employees turn up? 2 of 2

• Comfortable, well-lit and healthy surroundings

• Comfortable, ergonomic, and safe tools/equipment/furniture

• Flexible hours• Working from home• Daycare facilities• Recreation and leisure

facilities Page 16

Strategies for employers

Strategies for employers 1 of 3

• Attendance management programs

• Workplace wellness initiatives

• Employee satisfaction surveys

• Incentives to employees for unused sick days and meeting attendance targets

• Improve employee morale by reducing stress, rumours, negativity and gossip

• Reduce employee stress by improving the relationship with the manager

• Provide management training to improve people skills

• Team building initiativesPage 19

• Work-life conflict recognition

• Avoid discipline for legitimate absences

• Allow employees to carry over sick days

• Allow employees to telecommute

Culpable absenteeism

Culpable absenteeism 1 of 3

• Definition

KEY TYPES• Lateness/leaving early• Failure to notify• Absence without leave• Abuse of leave

FACTORS TO CONSIDER• Is there a clear policy

relating to culpable absenteeism?

• Has this policy been communicated clearly to employees?

• Has this policy been consistently and uniformly applied in the past?

• How serious is the incident in question?

FACTORS TO CONSIDER (CONT.)• What is the impact of the

absence on the employer’s production?

• Are there any relevant personal factors?

• What does the employee’s past disciplinary record look like?

• What is the past practice with respect to similar instances?

Innocent absenteeism

Innocent absenteeism 1 of 7

• Definition

FACTORS TO BE CONSIDERED• Attendance record• Prognosis for future

attendance• Counselling• Benefits status• Human rights

considerations• Employment Standards

Considerations

FACTORS TO BE CONSIDERED (CONT.)• Workplace Safety and

Insurance Act considerations

QUESTIONS TO ASK• Is the level of

absenteeism unacceptably high particularly when viewed in terms of its pattern?

• Have you acquired all the information you can regarding the likelihood of improvement in the future?

QUESTIONS TO ASK (CONT.)• Have you counselled the

employee about the consequences of failure to attend regularly, and kept records of having done so?

• Will termination interfere with any contractual right the employee may have to disability benefits?

QUESTIONS TO ASK (CONT.)• Is the absenteeism – or

any part of it– attributable to a disability such that the Human Rights Code may apply?

• Is the absenteeism – or any part of it – attributable to emergency leave or family medical leave under the Employment Standards Act, 2000?

QUESTIONS TO ASK (CONT.)• In the case of absences

due to work-related injuries or illnesses, will the termination interfere with the employer’s re-employment obligations under the WS and I Act?

• Have you complied with your obligation under the ESA 2000 to provide statutory notice (or termination pay) and severance pay to the employee?

Dismissal and termination

• Non-unionized employees

• Employees covered by collective agreements

• What judges consider with culpable attendance-related misconduct

The Human Rights Code

• The “bona fide occupational requirement” test

• Disability• Duty to accommodate• Record-keeping and

documentation• Questions to ask

Workplace Safety and Insurance Act

• Schedule 1 employers• Schedule 2 employers• Return to work

obligations for the employer

• Return to work obligations for the employee

• The functional abilities form and the independent medical examination

• Re-employment• Termination

Emergency leave and medical leave

Emergency leave and medical leave1 of 3

PERSONAL EMERGENCY LEAVE• Who is covered• The basic statutory

entitlement• Notification• Collective agreements

and employment contracts

• Reprisals• What employers can do

GOVERNMENT DECLARED EMERGENCIES• Emergency order• Quarantine order• Assistance to family

members• Maximum number of

daysFAMILY MEDICAL LEAVE

FAMILY MEDICAL LEAVE• Employment Standards

Act 2000• Who is family?• One week blocks• Written notice• Doctor’s certificate

The employer’s right to information

• Context• Non-medical

explanations• Medical explanations• Surveillance• Duty to accommodate• Consent• Confidentiality• Costs

How much is too much?

How much is too much? 1 of 3

• Cost to the Canadian economy

• Average• HIGHEST-health care

and social assistance• LOWEST-professional,

scientific and technical services

• Public v private• Unionized v non-

unionized• Young v older• Large employers v small

employers • Per province

• 351552 paid absence days in TDSB

• Per employee?

Conclusion, summary and questions

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