Sick day limits are legal

Statutory entitlements and individual accommodation needs must be considered when placing a cap on sick days

Brian Johnston
Statistics Canada recently released survey results showing a significant rise in absences from work due to personal reasons (including illness or disability). In 1997, full time employees missed 7.3 days of work. In 2005, that number had grown to 9.5 days. Given the impact on the workplace of reduced productivity and worker replacement costs plus the cost of benefits provided to absent employees, it is no wonder employers want to limit sick days.

However, some sick time is statutorily permitted. Employment standards legislation in Canada allows anywhere between three and 12 days unpaid leave per year for illness. Most employers recognize that from time to time employees may be absent from work from illness and many have policies allowing for paid leave to be earned and “capped.” When paid sick leave expires, employees may receive some form of short- or long-term disability coverage, employment insurance or an unpaid leave.

However, if a non-unionized employee misses too much time, the employer may be able to say the employment relationship is frustrated and allow it to end without economic consequences to the employer. The common law principle of frustration is consistent with the concept of innocent absenteeism, which has been enshrined for many years in unionized situations.

Attendance management programs establish sick day limits

For many years employers have used attendance management programs to encourage attendance, deal fairly with workplace absences, establish qualifications for paid leave and identify acceptable absences including their duration, frequency and limits. The consequences for inappropriate absences (establishing a limit) are relatively easy when an employee takes time away from work without a valid reason. Employer policy usually has zero tolerance for such absences and some form of associated discipline.

The challenge is in establishing consequences for “legitimate” absences which may be lengthy or frequent. The number of days missed may exceed the employer’s commitment to provide paid leave and the consequence would be no compensation. However, the impact of an employee’s absence goes beyond the out-of-pocket costs of paid leave. In the distant past, an employer, unencumbered by a contractual commitment to maintain employment when the employee was not at work, could simply dismiss the employee.

Duty to accommodate concern for employers

The principle of duty to accommodate has been a concern of management in dealing with attendance problems when a human rights issue is involved. But drawing the line between absences caused by handicap or disability versus other legitimate conditions which are not human rights protected has not been easy. Therefore, it has seemed to some employers that lengthy, albeit unpaid and legitimate, absences had to be tolerated to avoid a human rights complaint or other litigation.

The high-profile decision of Keays v. Honda Canada Inc. saw $100,000 in punitive damages awarded along with substantial compensation as a result of Honda’s requirement that Kevin Keays justify medical absences when other able-bodied employees were not required to provide such justification. Though Honda has sought leave to appeal to the Supreme Court of Canada, this decision has attracted a lot of attention and reinforced employer reluctance in dealing with non-culpable employee absences.

However, a more recent and favourable decision for employers dealing with the limits of work absences was released by the Supreme Court of Canada on Jan. 26, 2007. In McGill University Health Centre v. Syndicat des employés de l'Hôpital général de Montréal, the court supported a labour arbitrator’s award upholding the termination of an employee after three years’ absence due to disability, pursuant to a collective agreement provision. The provision stipulated after 36 months of absence an employee would lose seniority rights and employment if absent due to illness or accident, other than an industrial accident or occupational disease. The union had grieved the termination, relying upon the Quebec Charter of Human Rights and Freedoms provision.

The court acknowledged the duty to accommodate arises when an employer seeks to apply a standard that is “prejudicial to an employee on the basis of specific characteristics that are protected by human rights legislation.” It noted the employer had to justify the standard applying the Meiorin three-step test, including the requirement that the employer must demonstrate it is “impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer”. The court recognized the factors “that will support a finding of undue hardship are not entrenched and must be applied with common sense and flexibility”. Importantly, the court said “the right to accommodation is not absolute; consideration of all relevant factors can lead to the conclusion that the impact of the application of a prejudicial standard is legitimate.”

The court recognized there can be limits on the amount of time an employee may be away from work to ensure sick employees return within a reasonable amount of time and keep the business running. Once those limits are exceeded, the employee’s employment may be in jeopardy.

Parties to a contract (whether a collective agreement or an employment contract) cannot contract out of a person’s fundamental rights. In McGill, the fact the three year period was negotiated was only a consideration when assessing the duty of “reasonable accommodation.” A worker’s sick day allotment can’t be negotiated to be shorter than what human rights legislation allows. A collective agreement can’t establish a level of protection lower than the basic level provided by legislation.

The court in McGill also noted accommodation is not standard but needs to be flexible according to the situation.

“The importance of the individualized nature of the accommodation process cannot be minimized,” the court said. “The scope of the duty to accommodate varies according to the specific needs of each employee and the specific circumstances in which the decision is to be made. Throughout the employment relationship, the employer must make an effort to accommodate the employee.”

However, the negotiated standard can provide guidance to what the parties consider to be reasonable accommodation.

“Such a clause can serve as evidence of the maximum period beyond which the employer will face undue hardship, especially in the case of a large organization, where proving undue hardship resulting from an employee’s absence could be complex,” the McGill court commented.

Thus a limit can, in the right circumstances, be effective and not violate human rights. The court felt the assessment of the extent of accommodation did not begin at the point where employment was in jeopardy (the employee having reached the “limit”), but rather the entire absence.

“Undue hardship resulting from the employee’s absence must be assessed globally starting from the beginning of the absence, not from the expiry of the three-year period.”

This is very important as it recognizes the whole of an attendance management program, including its benefits and limits, may all be part of the employer’s duty to accommodate.

An employer can establish a “hard line” with associated consequences with respect to sick-day usage and not presumptively violate human rights principles. However, that limit has to respect statutory entitlements and be consistent with the individualized nature of accommodation. A hard-line limit itself can be evidence of reasonable accommodation as an employer establishes bona fide measures to ensure employees’ regular attendance.

For more information see:

McGill University Health Centre v. Syndicat des employés de l'Hôpital général de Montréal, 2007 CarswellQue 110, 2007 CarswellQue 111 (S.C.C.).

Keays v. Honda Canada Inc., 2006 CarswellOnt 5885 (Ont. C.A.).

Brian Johnston is a partner with Stewart McKelvey Stirling Scales in Halifax. He can be reached at (902) 420-3374 or [email protected]

Three-year allowance for disability leave is sufficient accommodation, court rules

The Montreal General Hospital terminated an employee who had been off work for three years because of a disability. The collective agreement allowed for terminations of disabled workers after three years. The union claimed this was a failure to accommodate the disability and a violation of Quebec’s Charter of Human Rights and Freedoms.

However, the Supreme Court of Canada found the collective agreement provision limiting disability leave was justified, noting further accommodation would have a negative impact on the hospital and reach the point of undue hardship. The three-year limit stipulated in the collective agreement was not a violation of the charter as it surpassed the minimum requirements. The court found the three-year limit was a recognition of the hospital’s duty to accommodate and an identification of the point it would face undue hardship. Once the employee’s leave reached that point, the hospital had the right to terminate her.

“Undue hardship resulting from the employee’s absence must be assessed globally starting from the beginning of the absence, not from the expiry of the three-year period,” the court said.

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