More instruction required to deal with disability-related absences
The Southlake Regional Health Centre in Newmarket, Ont., implemented an attendance support program (ASP) on Apr. 14, 2015. The ASP divided the year into two six-month review periods beginning on April 1 and Oct. 1, respectively.
If, during any review period, an employee met the threshold of three or more occurrences and five or more sick shifts within the period, the employee would be entered into the program’s “Attendance @ Work” framework. The framework had four phases, each involving the same occurrence and sick shift threshold for subsequent review periods.
The hospital claimed the ASP was designed to monitor attendance and to provide awareness and support to employees whose attendance fell below the limit and was adopted from an Ontario Hospital Association guideline.
The ASP had no specified consequences for employees who moved through any of the phases, as the hospital wanted to emphasize a supportive approach for employees with innocent absenteeism.
The Ontario Nurses’ Association (ONA) grieved the ASP two weeks after it was officially implemented. The ONA argued that the threshold of three occurrences and five sick shifts was arbitrary as it didn’t reflect the hospital’s actual attendance statistics regarding nurses at the hospital. It also said the ASP violated the collective agreement and the Ontario Human Rights Code by failing to address situations where an employee had absences relating to a disability causing the employee to be entered into the ASP framework — leaving the possibility that an employee with a disability would move more quickly through the framework without a proper assessment on whether she could be accommodated.
The collective agreement stated “There will be no discrimination by either party or by any of the nurses covered by this agreement on the basis of race, creed, colour, national origin, sex, sexual orientation, marital status, family status, age disability, religious affiliation or any other factor which is not pertinent to the employment relationship.”
The hospital countered that the ASP was within its management rights, which were also outlined in the collective agreement and permitted it to “make and enforce and alter from time to time reasonable rules and regulations to be observed by the nurses, provided that such rules and regulations shall not be inconsistent with the provisions of the agreement.”
The hospital also argued there was no detriment to employees who were counted in the ASP and because there were no set consequences or actions at each phase of the framework, there were opportunities to address individual circumstances and accommodation options.
Arbitrator Elaine Newman found that the ASP framework had been “thoughtfully constructed” for supportive reasons relating to innocent absenteeism by employees. However, she also found that there was “obvious potential for actual negative impact on the employee” because once an employee advanced through all the phases of the ASP, it was possible that non-disciplinary termination of employment could happen if the hospital determined there was a frustration of the employment contract.
Looking at the hospital’s management rights, Newman agreed with the hospital that it was entitled to set the bar for attendance expectations and promote regular attendance at work, in the name of operating in an efficient way. The collective agreement supported those management rights, with the qualifier that the rules invoked were reasonable.
Newman also found the thresholds of three occurrences and five sick shifts as the triggers for employees’ entry into the ASP framework qualified as reasonable under the collective agreement.
These thresholds may not have been based on attendance statistics, but the ONA didn’t provide any evidence showing it had an unreasonable impact on the hospital’s nurses, said Newman, while also noting that the number of employees involved in the ASP dropped from 448 initially at implementation to 262 one year later.
However, despite the fact the thresholds for entering the ASP were reasonable, Newman found the program as a whole didn’t adequately protect workers as required by the collective agreement and the code. Though the framework allowed for opportunities to address disabilities and accommodation, these opportunities were not specifically provided for in the ASP, nor was there any instruction as to how to proceed with accommodation.
“When an attendance management program does not clearly and adequately instruct its managers and administrators on this point, it introduces into the workplace a risk that an individual with a disability will fall victim to an automatic administrative process that fails to be compliant with the spirit or the requirements of the Human Rights Code,” said Newman.
She pointed out that without such instructions, management could follow the ASP framework to the letter, which would be counterproductive and meaningless if the employees receiving warning letters and meeting invitations were missing work due to disabilities.
Newman dismissed the part of the ONA’s grievance involving the thresholds for entrance into the ASP, finding they were reasonable and within the hospital’s management rights under the collective agreement to establish in the ASP. However, she upheld the part of the grievance dealing with addressing disabilities and accommodation, determining that the ASP didn’t adequately address employee disabilities.
For more information see:
• Southlake Regional Health Centre and ONA (201503182), Re, 2016 CarswellOnt 9615 (Ont. Arb.).
