Employer’s use of approved sick leave and family-related leave to enter employees in attendance management program discriminatory: Board
Attendance managemenet programs are popular among employers for keeping an eye on employee absences and ensuring both good productivity levels and that employees who need accommodation are getting it — particularly for employers where employee absenteeism is a problem. However, such programs can walk a fine line where certain employee absences are related to grounds protected under human rights legislation. If such absences play a role in getting an employee entered into an attendance management program where she receives differential treatment, then it might be discrimination — whether the employer intended it or not.
A federal employer’s attendance management program discriminated against employees’ family status and disabilities by including leaves for those reasons in the threshold for entering them in the program, the Canada Public Service Labour Relations and Employment Board has ruled.
Corrections Canada (CSC) implemented a national attendance management policy (NAMP) for employees of its correctional institutions in October 2011. The policy was designed to ensure effective communications between employees and management about absences so CSC could accommodate any needs that contributed to the absences. It was meant to help employees improve their attendance rather than penalize them for absences. Managers were instructed to discuss absences with employees but not to seek medical diagnoses.
Each month, managers and supervisors were to review employees’ leaves and look for patterns. If a pattern was identified and an employee passed an absence threshold, the next step would be to interview the employee regarding the reasons for the absence. Documentation for the interviews was to be stored in confidential employee files available to supervisors only on a need-to-know basis. If the leave issues were addressed and not of concern, the matter ended there and didn’t proceed to the next review period.
If accommodation was identified, leave related to it wasn’t included in the calculation of the threshold. In the absence of accommodation, both sick leave and family-related leave were used to calculate whether an employee crossed the absence threshold requiring an interview.
Medical and family-related leave part of calculation for attendance threshold
Bonita Ebelher worked at the Bowden Institution in Bowden, Alta., from 2003 until her retirement in 2013. On April 25, 2012, her supervisor asked her to meet with him to discuss her attendance in the 2011-2012 fiscal year but she refused, saying her reasons for absences were between her and her doctor and the leave she took was permitted under the collective agreement. Soon after, she went on leave for three months due to a disability, for which she provided a medical note.
A month after she returned to work, Ebelher had a short meeting with her manager and was asked to meet with the deputy warden, who was the NAMP co-ordinator for the institution — this time to discuss her three-month leave. She was then put on an attendance management plan where she was required to certify all sick leave within a reasonable time or it would be without pay.
Ron Harrison had 30 years of service with CSC at the Bowden Institution and had a daughter with a serious mental illness. Because of his daughter’s condition, sometimes there were critical situations where Harrison had to leave work to attend to her or accompany her to medical appointments. Harrison also had another daughter who had a serious heart condition for which he had to attend appointments because his wife couldn’t take time off work.
Also on April 25, 2012, Harrison was informed he had gone over the NAMP threshold due to the amount of family responsibility and sick leave he had taken. After meeting with Harrison, the deputy warden determined no attendance action plan was required, though his attendance would be monitored for any patterns of absences, despite the fact the manager was aware of his family situation.
Kendra Haldorson also worked at the Bowden Institution and in the 2011-2012 fiscal year, she took 37.5 hours of family responsibility leave when her daughter required emergency surgery. When this was added to 87.5 hours of sick leave she had used, she crossed the NAMP threshold and was required to meet with the deputy warden. She told the deputy warden about her daughter’s illness and that her manager had told her to use her personal sick leave to cover some of the time needed to care for her daughter. The deputy warden determined no further action was necessary.
Candice Westbury, another Bowden employee, exceeded the NAMP threshold due to a negative sick leave balance from a seven-month disability leave in 2010. Her manager told her it was unfair to refer her to the NAMP due to her chronic illness and there was no need to explain her absences, but she was referred to the deputy warden anyway. The deputy warden advised Westbury her attendance would be monitored.
Co-worker Gallagher Keough broke his foot and had surgery on it, requiring an eight-week absence from his job at Bowden — all certified sick leave. He returned for three months and then was off for another month for additional surgery. Keough’s manager advised him she had no concerns due to his illness, but he received a letter indicating the meeting was documented under the NAMP, which would remain in his file for one year.
Randi Bodnar used family responsibility leave and vacation leave to care for her mother, who had a degenerative disease and was bedridden. Bodnar was responsible for her mother’s care and business affairs, so often had to take time off. She also frequently used sick leave because she was often exposed to illness at work and wanted to avoid exposing her mother to it. When her leave exceeded the NAMP threshold, she met with the deputy warden and was advised her attendance would be monitored and a letter placed in her file.
Two other Bowden employees — Mandelle Mitchell-Himler and Kevin Williams — received letters under the NAMP and were required to meet with the deputy warden to discuss their exceeding the threshold from family leave and sick leave. Mitchell-Himler’s supervisor recommended she not be placed on the NAMP because more than half her leave was certified sick leave and much of the rest was family-related leave to care for her son, who had a medical problem. Williams’ supervisor also recommended he not be placed on the NAMP because it was justified family leave that put him over the threshold. Mitchell-Himler was placed on attendance monitoring for three months and Williams required no further action, though the letter was placed in his file.
The eight Bowden employees grieved the NAMP, arguing it discriminated against them based on family status by not differentiating family leave from sick leave. They claimed the NAMP systemically discriminated against them by using family leave prescribed in the collective agreement as part of the threshold calculation and failing to accommodate their family status needs.
CSC argued that the NAMP was only supposed to ensure CSC was managing attendance properly and accommodating any employee absences that needed it. There was no disciplinary element to it, so employees who had documented meetings on their file and monitored attendance weren’t placed at a disadvantage.
Good reason, bad application
The board found the purpose of the NAMP — constructive communication about employees’ attendance to resolve underlying causes for absences — was “a laudable concept,” but there were problems with the way it was carried out. Calculating a threshold for entry into the NAMP by including absences authorized under the collective agreement and those “directly attributable to the prohibited grounds of discrimination of disability and family status” did not take into account the personal circumstances of each employee and therefore was discriminatory on its face, said the board.
“The threshold developed by the employer is based largely on sick leave usage combined with the use of family related leave,” the board said. “However, it does not distinguish between the uses of sick leave related to a disability and includes time used by employees related to their family status without any provision for evaluating the threshold on a case-by-case basis.”
The board noted that family related leave was only available under the collective agreement for employees with particular family situations that required it. Therefore, it should be obvious that an employee who uses it qualifies for family status obligations and shouldn’t be penalized, which is essentially what CSC was doing by including family-related leave in calculating the NAMP threshold. All of the employees concerned — except for Ebelher and Keough — would not have been entered into the NAMP if it weren’t for their use of family responsibility leave, said the board.
The board also found that CSC didn’t question the sick leave usage of any of the employees, but they were still required to meet with the deputy warden, had records put in their files, and some had their attendance monitored — even when managers recommended no action. Even if CSC didn’t consider this disciplinary, it was differential treatment based on disability-related and family-related leave. CSC’s “arbitrary and rigid approach and the removal of any discretion at the supervisory level to prevent escalation to the NAMP level left no room for an assessment on an individual basis,” the board said.
The board found the NAMP discriminated against the employees based on family status and disability. However, it also found none of the employees suffered much in terms of pain and suffering, so it only awarded damages of $250 for discrimination and $500 for CSC’s “wilful and reckless disregard” of its human rights obligations outlined in the Canadian Human Rights Act and the collective agreement — for a total of $750 for each of the eight employees.
For more information see:
