You make the call
This instalment of You Make the Call features an employer who had enough with a worker’s absenteeism stemming from the worker’s psychological issues.
The worker was hired in 2002 by Sun Country Regional Health Authority in Saskatchewan, later becoming a continuing care aide at the Weyburn Special Care Home in Weyburn, Sask.
In 2011, the care home began having problems with the worker’s attendance. As her absences became more frequent, the health authority put her on its attendance support program (ASP).
The ASP was implemented when an employee’s absences fell within the top seven per cent of employees. If absences remained in the top seven per cent, the employee would progress through four stages, with the final stage leading to consideration of termination of employment.
In March 2015, the worker was informed she had exceeded the absence threshold and the health authority had a doctor’s note saying she had “a chronic medical condition that impacts your attendance at work.” The disability management co-ordinator provided the worker with a functional abilities form (FAF) for her doctor to complete.
The workers’ doctor indicated on the FAF that the worker was physically capable of returning to work on full duties, but didn’t provide any information on psychological conditions. As a result, no accommodations were implemented.
From March to May 2015, the worker missed 31.6 per cent of her scheduled hours, so she entered stage 1 of the ASP. The health authority agreed to assign the worker eight-hour shifts instead of 12-hour shifts and the worker agreed to contact the manager directly rather than leave a message when she was going to be absent.
Over the next three months, the worker missed almost 30 per cent of her scheduled hours, triggering stage 2 of the ASP. An action plan was developed that indicated the worker had a chronic mental health condition and information for a counselling and support groups would be provided. Another FAF indicated the worker “will require occasional periods off of work, due to inability to cope with workplace environment.”
A psychologist recommended a modification of work hours in fall 2015, so accommodation was implemented with the eight-hour shifts, but the worker remained in the ASP.
The worker’s attendance improved in the first quarter of 2016, but it was still in the top seven per cent so she entered the third stage of the ASP. She was told if she made it to stage 4, her employment could be terminated.
The worker’s attendance improved but was still in the top seven per cent, putting her into stage 4 of the ASP. Management noted the worker had mental health issues and developed an action plan that included “maintaining a healthy mindset, access classes on depression, keep open lines with management...” but the worker was warned that if her sick leave remained in the top seven per cent, frustration of employment could occur.
The worker’s attendance showed improvement initially, but fell off sharply in October and she failed to follow the procedure to call in sick. On Nov. 18, the worker’s employment was terminated for frustration of employment for innocent absenteeism, with the health authority indicating “no extenuating circumstances including disability or family situation that required accommodation has been confirmed.”
You make the call
Should the worker have been accommodated?
OR
Did the worker’s absenteeism frustrate her employment?
IF YOU SAID the worker should have been accommodated, you’re right. The arbitrator noted that in most cases, innocent absenteeism linked to a medical condition that qualifies as a disability gives rise to a duty to accommodate. If accommodation is required, the absenteeism should be treated differently than in an ASP. The health authority’s ASP even stated that if absences may be related to a condition requiring accommodation, those absences shouldn’t count towards the seven per cent threshold.
The arbitrator accepted that the worker was warned that if her attendance didn’t improve, her job would be in jeopardy, and agreed that there was “no positive prognosis for regular future attendance for the (worker) to carry out regularly assigned shifts” that could lead to frustration of employment. However, the key issue was the duty to accommodate, as the health authority was aware the worker had a chronic mental health condition. Though the FAFs didn’t indicate any physical restrictions, they did note the worker had a psychological condition that affected her ability to deal with the work environment and required occasional absences. However, the health authority didn’t use this information to change the worker’s track in the ASP, said the arbitrator.
The arbitrator found that the health authority demonstrated that the worker’s attendance was excessive and the worker had been warned about the consequences of failing to improve, but it failed to fully discharge its obligation to accommodate the worker to the point of undue hardship. The health authority was ordered to reinstate the worker and work with her on possible accommodation solutions.
For more information see:
• Sun Country Regional Health Authority and CUPE, Local 5999, Re, 2017 CarswellSask 670 (Sask. Arb.).
