Absenteeism and reasonable accommodation: what employers can do in the face of excessive absenteeism
October 20, 2022
Can an employer fire someone if they’ve had too many absences? Like most legal questions, it depends.
If the employee’s absences are for a reason that their employer would have to accommodate under human rights law, then the answer would likely be: no, not unless they want the termination to be found discriminatory.
This means that terminating the employment of an employee who is having health issues is risky. But does that allow employees with health issues to be absent from work whenever they want? What if an employee has both legitimate reasons for their absences, like medical reasons, and illegitimate and culpable reasons? Can their employment be terminated for the culpable absences?
In Cheryl Lynn Bezoine v. City of Ottawa, 2022 CHRT 9, the Canadian Human Rights Tribunal found that the termination of an Ottawa transit operator with a significant history of health-related absences was not discriminatory, as the operator had absences that were unrelated to injury or illness and was therefore culpable.
But key to the employer’s success in that case was the employer’s ability to differentiate between what was culpable and not, and to take issue with only illegitimate absences. At a meeting, her employer told her that her 35 absences due to a hand injury, and another nine days for which she had medical documentation were not at issue. But the eight days she was absent without a legitimate excuse was too high.
Absenteeism is a problem for many employers. Absenteeism costs Canadian employers more than $16 billion a year, according to a study by the Conference Board of Canada.
How can employers better deal with absenteeism? Here are a few tips:
- Have an attendance policy and apply it fairly – employers should make clear to employees attendance expectations and what constitutes culpable absenteeism. A policy that offers employees sufficient flexibility, for example, by offering personal days and flexible hours, provides for fewer absences and makes excessive absences more culpable. The policy should be applied consistently, while supporting employees in their ability to attend work.
- Keep track of absences – employers should record absences and differentiate between absences related to human rights grounds while tracking absences that are culpable. If an employee’s employment is terminated for culpable absences, an employer should document that it is aware of any medical issues and that the termination was not because of them. If the employer is unaware of any disability, it should document that as well.
- Reward good attendance – consider rewarding employees for good attendance through bonuses or perks. But beware of applying the reward system unfairly by excluding employees with legitimate absences.
These tips can help foster a healthy workplace and protect employers from liability if they are forced to terminate because of absenteeism.