Northern Exposure

Aspects of Attendance Management Program Ruled Discriminatory

By David Wong

Attendance management programs themselves aren’t discriminatory — they just need to be carefully designed and properly applied. Such is the latest conclusion in continuing litigation between Coast Mountain Bus Company Ltd. and the Canadian Auto Workers, a battle over an attendance management program covering transit operators in the Greater Vancouver region in British Columbia.

In May 2009, we commented on the British Columbia Supreme Court’s decision in which the court largely accepted the employer’s program.

In the latest chapter of this battle, however, the British Columbia Court of Appeal has overturned the decision of the British Columbia Supreme Court. The Court of Appeal determined that certain aspects of Coast Mountain’s attendance management program systemically discriminated against disabled employees.

Five-phase attendance management program
Coast Mountain’s attendance management program has five phases:

  • After employees with high absenteeism were identified, Coast Mountain had informal communications with them to allow employees to provide the reason for the high rate of absenteeism.
  • Next, a Level 1 interview — intended to make the employee aware of Coast Mountain’s concerns with his or her absenteeism and to offer any assistance that would lead to more acceptable attendance — occurred.
  • If attendance didn’t improve, a Level 2 interview would be held. Here, the employer would request a medical assessment from the employee to assist in determining his or her ability to work on a regular basis and ascertain whether the employee had a medical disability.
  • After the employee’s medical information was assessed, a Level 3 interview would occur. In this interview, Coast Mountain would communicate its attendance expectations and the possible consequences if the employee didn’t meet those expectations. Those attendance expectations were based on the average absenteeism rate of Coast Mountain’s transit operators. In calculating the absence rate of the employee, days missed for short-term disability, long-term disability, and workers’ compensation claims were counted as absences.
  • If the employee failed to meet the attendance expectations, an employment status review occurred. At that stage, a decision on whether to terminate the employee was made.

Systemic discrimination in setting attendance expectations
The Court of Appeal rejected the claims that the interviews at Levels 1 and 2 were discriminatory. The purpose of the Level 1 interview was to make the employee aware of Coast Mountain’s concerns about his or her attendance record, and there was no adverse treatment flowing from such an interview. Similarly, the main purpose of the Level 2 interview was to obtain a medical assessment to determine whether the employee in question had a medical disability. The Court of Appeal confirmed that it isn’t discriminatory for an employer to require an employee to establish that his or her absence at work is because of a disability.

Unfortunately for employers, the court found that the process at Level 3 (at which point an employee’s employment could be put in jeopardy) was discriminatory:

  • Including absences because of short-term disability, long-term disability, and workers’ compensation claims in calculating absenteeism, both for placing employees at the Level 3 interview and monitoring them after the Level 3 interview, was discriminatory. Similarly, by including partial days missed while on gradual-return-to-work programs in calculating absenteeism, the attendance management program was discriminatory. In these cases, the employee’s disability was a factor in this calculation and that, the Court of Appeal said, was discriminatory.
  • Despite being aware that an employee’s disability could lead to elevated absence levels, the employer applied the same attendance expectations to disabled and nondisabled employees alike. This was discriminatory because disabled employees ended up progressing through the levels of the attendance management program process more quickly.

Take-home lessons for employers
The good news for employers is that attendance management programs per se aren’t discriminatory. It’s also not discriminatory to raise concerns about an employee’s poor attendance or seek medical information from an employee to explain his or her absences.

But the story isn’t all good news. Employers need to consider the following:

  • In considering the attendance expectations of disabled employees, you should consider the specific circumstances of each of disabled employee, including how his or her disability may affect future attendance. Expectations based on the average attendance rates of nondisabled employees are discriminatory.
  • Absences of disabled employees that are a result of their disabilities shouldn’t be treated the same as absences of nondisabled employees that aren’t attributable to a disability.

Although they come from a British Columbia decision, these lessons likely apply across the country, given the similarities in human rights laws across Canada.