Making Sense of Attendance Management Programs

Statement of RespectOPSEU Statement of RespectHarassment or discrimination of any kind will not be tolerated at OPSEU

functions.Whenever OPSEU members gather, we welcome all peoples of the world. We

will not accept any unwelcoming words, actions or behaviours against our sisters and brothers.

We accord respect to all persons, regardless of political affiliation, including people of colour, women, men, First Nations men and women, Metis or other Aboriginal peoples, members of ethno-racial groups, people with disabilities, gays, lesbians, bisexual and transgendered/ transsexual peoples, francophones and all persons whose first language is not English.

In our diversity we will build solidarity as union sisters and brothers.If you believe that you are being harassed or discriminated against, let one of

us know and we will deal with it on the spot. If an instructor is the problem contact_____________________________here at the conference and you can contact the person for immediate assistance.

Introductions

Write Your name Where you are from One or two words about your workplace

attendance management program

Making Sense of Attendance Management Programs

GoalTo provide participants with the knowledge and tools to help defend their members from unfair attendance management program practices

Objectives:

Know What case law says Attendance Management Programs (AMP) are supposed to beWhat medical documentation the employer is entitled toWhen non-disciplinary dismissal and independent medical examinations are deemed appropriate by arbitratorsWhat strategies have been used successfully in other workplaces

FeelMore confidence to be able to defend members against unfair AMP practices

DoRecognize employer strategies and hidden agendasContrast your employers AMP with what arbitrators have said AMP’s should beExplain to members, the value of union representation for AMP programs

Course at a Glance

Session 1 Session 3

60 minutes AMP’s what they are/ what they are supposed to beIntros to participants, the issues, the courseIdentify common issuesContrast common issues with what AMP is supposed to beReview case law for attendance management programs

60 minutesStrategies to inform the membership and build the localGet the memberships cooperation/supportRate your locals readiness and next steps

15 Minute Break

60 minutesWhat Employers Are Entitled ToWhat do the members need to knowEmployer terms and strategies: independent medical exams, Non-disciplinary dismissal, and last chance agreementsDocumentation: what we need to document and why

Task Sheet 1As a table group, in the spaces below please write word or two, describing your workplaces attendance management program or your feelings towards the program, which starts with the corresponding letter next to it. (I.e. A = appropriate, D = disciplinary)

A N

B O

C P

D Q

E R

F S

G T

H U

I V

J W

K X

L Y

M Z

LEVEL ONEAbsences exceed __ occurrences

or _ days within __ months of triggering (usually same days or

occurrences’ to trigger)

Proceed to Level Two

LEVEL TWOAbsences exceed __ occurrences

or __ days within __ months of triggering

Proceed to Level Three

Absences exceed __ occurrences or __ days within __ months

(usually 6 or 12 months)

Proceed to Level One

Removed from all levels of the AMP

In the __ months following the drop in

LevelIf the employee

remains within __ occurrences or __

days, the employee will be removed from

all levels of AMP

If the non-culpable absenteeism remains within __ occurrences or __ days for __ months from the date

the level was triggered

Typical AMP – FLOW CHART

LEVEL FOURMeeting with employee, union rep &

employer representatives/senior management

Employees who have been unwilling or unable to meet attendance standards may be subject to

termination

Where the employer is satisfied based on available medical information, that there is the likelihood that the employee will be capable of satisfactory attendance in the foreseeable future, a decision to terminate may be deferred for a limit period of time

If the non-culpable absenteeism remains within __ occurrences or __ days for __ months from the date the level was triggered the

employee will drop one level to Level 1

What Case Law Says About Attendance Management Programs

Workplace Policy/Procedure

Implementation

Must provide a notice or warning that the present level of absenteeism is unacceptable

Must provide an opportunity for the employee to effect improvement

If using thresholds, WSIB and culpable absences cannot be factored into dismissal decisions

Thresholds must be a reasonable indicator of a problem existing (i.e. workplace averages or sector norms

Must take into account the employers duty to accommodate

The program cannot be applied mechanically

Counseling letters are allowable but the tone must not appear punitive or disciplinary

They cannot violate the collective agreement

Program must be communicated to the employees.

Task Sheet 3Contrast Your Workplace AMP

Use your answers on Task Sheet 2 and the questions below to have a conversation with your partner. Be prepared to share the answers from your conversation with the larger group.

Which of the case law principles does the employer do a poor job of adhering to?

Does the employer’s AMP policy incorporate the case law principles outlined on Task Sheet 2?

Is there a difference between the AMP policy and how the employer implements the AMP program?

If the employer is not following the case law principles, why do you think that is?

AMP T/F QuizAttendance management programs are just meant to harass me.

My medical information is none of the employers business.

The employer cannot fire me if I am legitimately sick.

Last chance agreements are not worth the paper they are written on.

The employer cannot tell me which doctor to see.

My doctor’s note cannot be challenged by the employer.

A doctor’s note needs to only say that I was sick and if I can come back to work.

Attendance letters are meant to discipline me.

If I sign a last chance agreement I forfeit my right to grieve dismissal.

If I sign a “Waver of Representation” I’m not entitled to union representation

If I am only off for a few days here and there I am safer then if I am off for long chunks of time

The employer does not have to accommodate an employee if they do not know the employee has a disability

Task Sheet 4Critiquing Dr Notes

Using the Dr note and scenario assigned indicate:What you liked about the note?

What you would add (if anything)?

What you might remove (if anything)?

Your groups reasons for your decisions

Scenario 1

Dr J Erving, MD. June 7, 2011

To Whom It May Concern: Joan is a patient under my care. She was off work due to illness May 17-20. At present Joan can return to full duties.

Dr Erving

Scenario 2Doctors Note: Dr J. Rochette, MD. June 7, 2011To Whom It May Concern: Renaldo is a patient under my care. He was off work due to illness May 17-20. At present Renaldo can return to full duties. Dr Rochette

Scenario 3Doctors Note: Dr D. Igali, MD. June 7, 2011To Whom It May Concern: Perdita is a patient under my care. She was off work due to a cardio respiratory illness since May 24th. At present Perdita can return to full duties with the following restrictions:

Frequent rest breaks (10 minutes every hour)No heavy lifting (weights over 10kg)

I plan to reassess Perdita in two weeks time (June 21st ) to determine any change in restrictions. Dr D. Igali

Scenario 4Dr C. Petitclerc, MD. June 7, 2011To Whom It May Concern: Daniel is a patient under my care. He has been off work due to complications from his diabetes. He is currently undergoing insulin treatments and should be able to gradually return to work June 13th. Currently he has limited mobility and cardiovascular reserve. I expect that this will improve as his condition improves. I have included a return to work plan below.Return to work plan: Week 1: 4 hour shiftsWeek 2: 6 hour shiftsWeek 3: Full daysGeneral restrictions:Limited walkingNo heavy lifting Frequent breaks Dr Petitclerc

Task Sheet 5Defining IME, Non-Disciplinary Dismissal, Last Chance

Agreements

Answer the following questions using your past experiences, knowledge of your collective agreement, or workplace policies. If you are unsure the term assigned to your group, answer the questions from the perspective of what seems reasonable. Insert the term you have been assigned into the blanks below.What is __________?When is _______ deemed appropriate?What are the limitations on the employer when pursuing________? What are the employee’s responsibilities when facing _________?Be prepared to share your answers with the rest of the group.

Documentation

“Documentation is important in the areas of duty to

accommodate, WSIB, and attendance management”

Documentation Work Sheet

Before the Meeting

During After

Task Sheet 6Strategies for Member Cooperation

In your group create a strategy to build membership support and cooperation using the heading that your group has chosen. Your strategy could include:

Who you are going to target your message to

How you are going to achieve your goals

What your message will be

What you will need for success

Be prepared to share your answers with the class

OPSEU Successes Context Strategy Used Results

Challenged an attendance management program

Policy grievance over Correction’s ASMP Keller decision.

Employer must:Treat members on a case by case basis Remove absences that arise from disabilityPreclude WSIB absences from Level 4 determinations

Successfully challenged a non-disciplinary dismissal termination

Filed an individual grievance that was “fast tracked” to arbitration.

Won the arbitration due to the employers refusal to consider supplemental medical information

Successfully challenged an arbitrary threshold

Policy grievance currently in the works against the Corrections ASMP

Awaiting decision

Got an accommodation through the AMP process

One OPSEU worksite had 22 members in the AMP. OPSEU used a training program to equip stewards to challenge the program

Fifty percent of the members in the program have been moved to a lower level of the program or removed entirely

Task Sheet 7 Taking it back to the Local

When I first get back to the local I would like to ______________________________________________________________________________________________________________________________

Within one month I would like to ______________________________________________________________________________________________________________________________

In six months I would like to ______________________________________________________________________________________________________________________________

Possible actions to take over these time frames include:•Develop AMP specialists in the local•Host lunch and learn•GMM agenda item•LMM/ERC agenda item•Review workplace policy and procedure