The other week, Toronto was hit with a major rainstorm that ground parts of the city to a halt. The effect of the storm was felt particularly by those in the west end of the city whose homes, businesses and streets were flooded by the uncharacteristic amount of rain. Naturally, those affected by the storm were likely finding the commute to work the next day rather difficult, if not impossible. This got me thinking about whether employees, who were not as severely affected, may nevertheless use the flood as a way to stay home for the day – and the overall challenge for employers to decipher between legitimate and illegitimate absences.

While absences are unavoidable, poor attendance by employees can affect the employer’s bottom line by negatively impacting productivity, work quality, morale and customer service.  As a matter of law, excessive absenteeism also undermines the employment relationship since the employer is paying a wage in exchange for non-existent work.

Given the toll it can have on the workplace, here are some key issues to consider when dealing with absenteeism:

(1)    Is the absence innocent or blameworthy?

Blameworthy (or culpable) absenteeism occurs when an employee does not have a reasonable explanation for not attending work. Examples may include taking a sick day when he/she is not sick; sleeping through an alarm; or not feeling up for the commute to work. Forbes magazine recently captured the most ridiculous excuses used by employees to avoid coming to work. My personal favourites are: the employee’s 12-year-old daughter stole his car and he had no other way to get to work; a bat got into the employee’s hair; the employee’s refrigerator fell on him; and the employee ate too much at a party.

Innocent (or non-culpable) absenteeism,on the other hand, occurs when an employee is absent from work for reasons outside his/her control. Examples may include illness; injury; and even extreme weather (rainstorm!) or natural disasters.

(2)    Can absenteeism warrant discipline?

When faced with culpable absences, employers can respond with progressive disciplinary action, depending on the circumstances of the absence. Disciplinary decisions should consider the employee’s employment record, length of service, the nature and/or severity of the absences, and how similar situations have been treated in the past.  If an employee lies about the reason for their absence, this can justify dismissal for cause as a Telus employee recently found out when he called in “sick” in order to play in a softball tournament.

Taking disciplinary action may, however, not be an appropriate step to take to manage innocent absenteeism since the absence is not the fault of the employee. Disciplinary action is even riskier where the true reason for absenteeism is not canvassed. For instance, an employee’s absences may be related to a disability, for which an employer is obligated to provide accommodation up to the point of undue hardship. In fact, the Globe and Mail reported that disability-related absenteeism is on the rise in Canada, with government disability claims doubling since 1999; and in 2012 alone being 13% higher than previous years.

(3)    Can an employee ever be dismissed for chronic innocent absenteeism?

To effectively manage innocent absenteeism, employers should have and adhere to a consistent (attendance management) policy or plan. As part of this plan, employers should:

1. Meet with the employee; communicate their attendance expectations; and outline the disciplinary action(s) employees can face for violating these expectations;
2. Where an employee alleges that their absence is based on a disability/injury, request supporting documents that outline the nature of the disability/injury, and the expected return date; and
3. Provide accommodation for disability-related absences, based on the information given by the employee (and their physician) including: modified attendance expectations; altering job duties/functions; and/or scheduling part-time work.

If an employee is chronically absent (despite warnings and accommodation), the employer may begin to consider whether termination for excessive innocent absenteeism is justified. Such terminations should be made when there is clear evidence that there is no reasonable prospect of the employee returning to regular attendance in the future, and his/her disability-related absences cannot be accommodated without undue hardship to the employer.  Given the significant costs associated with a wrongful dismissal claim and/or discrimination complaint, employers should pursue this option with great caution and after seeking legal advice, or else risk a flood of legal liability.

Parisa Nikfarjam