1. Absenteeism Management
By: J. Geoffrey Howard
Partner, Gowling Lafleur Henderson LLP
geoffrey.howard@gowlings.com

2. Absenteeism Management
1. A few statistics
2. Absenteeism at work and legislative protections
3. Absenteeism management
a) Involuntary absenteeism
b) Voluntary absenteeism

3. 1. A Few Statistics

4. 1 A FEW STATISTICS
Rate of absenteeism among full-time workers, 2000 to 20111
Days lost per worker during the course of the year
Total Illness or disability Personal or family obligations
Days
2000 8.0 6.7 1.3
2001 8.5 7.0 1.5
2002 9.1 7.4 1.7
2003 9.2 7.5 1.7
2004 9.2 7.5 1.7
2005 9.7 7.8 1.8
2006 9.7 7.6 2.1
2007 9.9 8.1 1.8
2008 9.7 7.9 1.8
2009 9.5 7.8 1.7
2010 9.1 7.4 1.7
2011 9.3 7.7 1.6
1Statistics Canada, Work Absence Rates, 2012

5. 1 A FEW STATISTICS
Rate of absenteeism among full-time workers by province, 20111
Days lost per worker during the course of the year
Total Illness or disability Personal or family
obligations
Province Days
Newfoundland and Labrador 10.2 8.5 1.8
Prince Edward Island 9.9 8.3 1.5
Nova Scotia 10.8 9.0 1.8
New Brunswick 10.8 9.2 1.7
Quebec 10.8 9.3 1.5
Ontario 8.3 6.6 1.7
Manitoba 10.2 8.2 1.9
Saskatchewan 11.0 8.8 2.2
Alberta 7.9 6.3 1.6
British Columbia 9.9 8.3 1.6
1Statistics Canada, Work Absence Rates, 2012

6. Rate of absenteeism among full-time workers
by presence of children, 20111
Days lost per worker during the course of the year
Total Illness or disability Personal
or family obligations
Days
1 A FEW STATISTICS
With children 9.4 7.4 2.1
Without children 9.2 7.9 1.4
1Statistics Canada, Work Absence Rates, 2012

7. 2. Work Absenteeism

8. • An employee's fundamental obligation to
perform his or her work
• The employee works “under the employer's
authority and supervision”
• Related obligation to report absence, provide
medical information
• Sick pay/Disability benefits are not mandated by
legislation
• The employer's right to manage absenteeism
and apply sanctions
• Supreme Court of Canada has recognized the right to
do so
a) Employee's obligations
2 WORK ABSENTEEISM

9. • Voluntary
• Involuntary
b) Types of absenteeism
2 WORK ABSENTEEISM

10. c) Employee's right to be absent
2 WORK ABSENTEEISM
Legal protections
•Protection under provincial legislation
• Illness
• Employment Standards
• No right to sick days or sick/disability pay
• Annual Vacation
• Various personal leaves (see below)
• Human Rights
• Disability: duty to “accommodate”
• Does not cover absence due to minor ailments

11. Legal protections
•Protection under provincial legislation
• Family or parental reasons
• Employment Standards
• Pregnancy/Maternity and Parental Leave
• Compassionate Care Leave (up to 8 weeks)
• Family Responsibility Leave (BC only - 5 days per year)
• “care, health or education” of child or care or health of other
family member
• Bereavement Leave (BC only - 3 days on death of family
member)
• Human Rights
• Marital Status
• Family Status
c) Employee's right to be absent
2 WORK ABSENTEEISM

12. 2 WORK ABSENTEEISM
c) Employee's right to be absent
Absences for family reasons
At the federal level
• The Canadian Human Rights Act
• Interpretation of “family status”
• Case law:
• Johnstone v. Canada Border Services, DTE 2010T-750
(CHRT) – confirmed by the Federal Court in Canada
(Attorney General) v. Johnstone, 2013, FC 113
• Seeley v. Canadian National Railway, 2010 CHRT23

13. 2 WORK ABSENTEEISM
c) Employee's right to be absent
Absences for family reasons
In British Columbia and Alberta
• Human Rights Code (BC) and Human Rights Act
(AB)
• B.C. case law:
• Heath Sciences Assoc. of B.C. v. Campbell River and
North Island Transition Society, 2004 BCCA 260 (CanLII)
Whether particular conduct does or does not amount to prima facie discrimination on the basis of family
status will depend on the circumstances of each case. In the usual case where there is no bad faith on the
part of the employer and no governing provision in the applicable collective agreement or employment
contract, it seems to me that a prima facie case of discrimination is made out when a change in a term or
condition of employment imposed by an employer results in a serious interference with a substantial
parental or other family duty or obligation of the employee. I think that in the vast majority of situations in
which there is a conflict between a work requirement and a family obligation it would be difficult to make
out a prima facie case.

14. d) Employer's obligations during the employee's absence
2 WORK ABSENTEEISM
• Group insurance
• ESA leaves require continued benefits during ESA
leaves
• Human rights leaves do not (subject to language of
policy)
• Reinstatement of employee
• ESA – to the job if it exists or a comparable job if it
does not
• Human Rights leaves: Subject to duty to accommodate
to the point of undue hardship
• Seniority
• ESA expressly states inactive employment on ESA
leaves included in calculating period of service

15. 3. Absenteeism Management

16. 3 ABSENTEEISM MANAGEMENT
• Limits of absenteeism management:
• Employee's right to privacy re private life and physical
well-being
- VS -
• The employer's right to know:
• Duration of absence
• Limits applicable to the employee
• Management methods in cases of voluntary and
involuntary absence
• Involuntary absenteeism: administrative approach
• Voluntary absenteeism: disciplinary approach

17. a) Involuntary absenteeism
3 ABSENTEEISM MANAGEMENT
• Two types of involuntary absenteeism
• Long-term absenteeism
• Chronic absenteeism
• Cases in which involuntary absenteeism may warrant dismissal
• Criteria:
1. High rate of absenteeism compared with other employees (long-term
absence or excessive chronic absenteeism)
2. No accommodations can be made without undue hardship, or
maintaining accommodations becomes an undue hardship
3. Low probability that the employee will return to work in the reasonably
foreseeable future after lengthy absence

18. 3 ABSENTEEISM MANAGEMENT A) INVOLUNTARY ABSENTEEISM
• Legal basis of the obligation to provide
accommodation
• Human rights
• S. 11
• Recognized in case law that the obligation to provide
accommodation is required in respect of all grounds of prohibited
discrimination
• Substantive and procedural obligation
• Individualized accommodation required

19. 3 ABSENTEEISM MANAGEMENT A) INVOLUNTARY ABSENTEEISM
• Exception to the obligation to provide
accommodation: bona fide occupational
requirement (BFOR)
• A distinction, exclusion or preference based on the
aptitudes or qualities required by a given job
• Conditions for demonstrating a BFOR according to the
Supreme Court of Canada:
• Purpose of standard is rationally connected to the
performance of the work
• Honest and good faith belief that the standard adopted is
necessary to achieve a legitimate goal associated with
the work
• Standard reasonably necessary and cannot be
accommodated without undue hardship

20. 3 ABSENTEEISM MANAGEMENT A) INVOLUNTARY ABSENTEEISM
• Limits to the obligation to provide
accommodation
• Undue hardship
• Factual case-by-case analysis
• “Undue” hardship implies that a certain amount of
hardship is acceptable
• Factors in evaluating the undue nature of the hardship:
• Financial cost
• Outside sources of funding
• Health and safety
• Fundamental change to the work contract
• Size of the company
• Impact on other staff

21. 3 ABSENTEEISM MANAGEMENT A) INVOLUNTARY ABSENTEEISM
• Examples of accommodation during illness:
• Keep the employee's position open
• Distribute employee's tasks and duties to others
• Ensure a gradual return to work
• Examples of accommodation due to family
status:
• Flexible scheduling
• Leaves of absence to care for family members
• Providing access to alternative work arrangements

22. 3 ABSENTEEISM MANAGEMENT A) INVOLUNTARY ABSENTEEISM
• Examples of accommodation upon ill employee's
return:
• Purchase of tools and equipment
• Changes to the work schedule
• Changes to the tasks performed
• Transfer to another position better suited to limitations
• Changes to the workplace

23. 3 ABSENTEEISM MANAGEMENT A) INVOLUNTARY ABSENTEEISM
• Employee's obligations
• Provide required information
• Cooperate to reach an acceptable compromise (e.g.
work part-time)
• Entitled to reasonable accommodation not perfect
accommodation
• Facilitate the implementation of the accommodation
• Any complaint may be rejected if the employee refuses
reasonable accommodation

24. 3 ABSENTEEISM MANAGEMENT A) INVOLUNTARY ABSENTEEISM
• Recommendations
• Take preventive measures to avoid absence
• Analyze each request for accommodation
• Fulfil the procedural requirement
• Be familiar with common accommodations
• Ensure accommodation options are individualized
• Have the employee assessed by an expert if
appropriate
• Analyze the criteria associated with the concept of
“undue hardship” before terminating the employee

25. b) Voluntary absenteeism
3 ABSENTEEISM MANAGEMENT
• Why take a disciplinary approach?
• To remedy or correct misconduct
• To respect and maintain the loyalty of other, more
conscientious, employees
• To be able to defend your decisions in court, if
necessary

26. 3 ABSENTEEISM MANAGEMENT B) VOLUNTARY ABSENTEEISM
• Different types of disciplinary measures
• Verbal/written warning
• Suspension without pay (short- or long-term)
• Dismissal (ultimate sanction)

27. 3 ABSENTEEISM MANAGEMENT B) VOLUNTARY ABSENTEEISM
• Important guidelines
Progressive disciplinary measures
• Disciplinary measures should be applied in a progressive
manner, since the aim of the exercise is to correct
misconduct and restore a viable working relationship
• Heavier sanctions as problems repeat or get more
serious
Only one disciplinary measure per case of
misconduct
• The employer cannot sanction an employee twice for the
same instance of misconduct

28. 3 ABSENTEEISM MANAGEMENT B) VOLUNTARY ABSENTEEISM
• Important guidelines
The disciplinary measure must be in proportion to
the misconduct and the context of the employee’s
history
• An employee can be disciplined only if he or she has
committed an act which, in itself, requires disciplinary
measures
• The employee’s individual circumstances must be
considered when assessing the appropriate discipline
• Equal is not always fair

29. 3 ABSENTEEISM MANAGEMENT
B) VOLUNTARY ABSENTEEISM
• Important guidelines
Take attenuating or aggravating circumstances into
account
• Attenuating circumstances:
• Seniority
• Clean disciplinary record
• Isolated incident
• Absence of clear rules or
policies
• Feelings of remorse
• Provocation
• Personal circumstances
(marital problems, illness,
substance abuse)

30. 3 ABSENTEEISM MANAGEMENT
B) VOLUNTARY ABSENTEEISM
• Important guidelines
Take attenuating or aggravating circumstances into
account
• Aggravating circumstances:
• History of disciplinary
measures
• Lack of seniority
• Premeditation/Intent
• Repeated misconduct
• Refusal to assume
responsibility for the
misconduct, or lack of
remorse
• Clear understanding of
wrongful conduct
• Violation of a clear
company rule or policy
• Consequences of the
misconduct

31. Thank You
J. Geoffrey Howard
Partner
Tel: 604 891-2279
Email: geoffrey.howard@gowlings.com
montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · beijing · moscow · london