Attendance / Absenteeism Management (Part II - Disability and Medical Information)
In a previous post found here we considered the basic requirements for an Attendance or Absenteeism Management Plan. This post looks at two key and vexing issues in particular.
1. Disabled employees - an AMP must not:
(a) put their employment in jeopardy solely on the basis of absences due to disability,
(b) automatically or arbitrarily impose disciplinary consequences for a failure to meet attendance expectations that are based on average employee absenteeism, or
(c) make them considered for termination as a result of non-disability
absences at an earlier time than employees without disabilities.
2. Medical information – may be requested when needed to:
(a) verify whether an absence is legitimate,
(b) verify a claim for sick pay or disability benefits,
(c) verify fitness to return to work,
(d) ensure the safety of the employee, other employees, clients and the environment,
(e) determine what forms of accommodation might be necessary, and
(f) determine the anticipated duration of the accommodation.
The employer is always subject to the duty to accommodate a disability to the point of undue hardship and an AMP must provide flexibility in order to allow the employer to fulfill that duty. Medical information should be examined closely and management should avoid making assumptions about an employee’s ability to work or the need for accommodation. An effective AMP will identify true attendance problems; for example, by distinguishing between genuine illness and sick leave abuse.
In appropriate circumstances, an employee may be dismissed for excessive non-culpable or innocent absenteeism. However, the fact that an employee has progressed through an AMP does not itself justify dismissal for non-culpable absenteeism. The decision to dismiss an employee must be based on the specific circumstances of the employee and an evaluation of the duty to accommodate. An employee must always be warned before they are dismissed that they must improve their attendance or face dismissal. Such a warning is not considered disciplinary in itself.
absenteeism accommodation attendance disability discrimination duty to accommodate medical information termination warning