Attendance management program was systemic discrimination: Tribunal

Chronic or recurring medical conditions affecting attendance not considered until employees were already put on notice

A cure for absenteeism or systemic discrimination?

Vancouver’s Coast Mountain Bus Company (CMBC) had a serious staffing problem in 1997. Due to the demands and stresses of the job, the company’s transit operators had an excessively high rate of absenteeism. In an attempt to address the problem, the company introduced a formal attendance management program (AMP), which would monitor employee absences and give them warnings that would become more serious through three levels of the program if attendance didn’t improve, eventually ending with termination.

Attendance improved, but CMBC faced cries of unfairness from the union. Eventually, the complaints led to a human rights tribunal finding the AMP didn’t treat employees with disabilities that affected their attendance reasonably.

Though the AMP was established with a reasonable purpose in mind, CMBC didn’t differentiate between employees whose medical conditions caused them to miss work and general absenteeism. As a result, CMBC was guilty of systemic discrimination in its AMP.

The British Columbia Human Rights Tribunal has ordered a transit company to revise its attendance management program (AMP) because it discriminates against employees with disabilities that lead to absences.

Coast Mountain Bus Company (CMBC) operates buses and small shuttle services in the Vancouver area, employing 2,600 transit operators. This type of work leads to a high amount of stress on the operators and as a result, absenteeism is higher in this industry.

Audit finds absenteeism a problem for transit operators

A 1996 audit of transit operators for CMBC's predecessor, B.C. Transit, revealed nearly 25 per cent had “extensive, chronic absenteeism” and the average CMBC operator was absent 27.4 days per year — more than double the average at other North American transit companies surveyed.

In response, B.C. Transit introduced an AMP in order to decrease absenteeism and make employees aware of the importance of good attendance. Because the goal was to decrease overall absenteeism, all absences were covered, including short-term and long-term disability and workers’ compensation benefits. Through the AMP, CMBC hoped to achieve an average annual absence rate of six per cent and 15 days per employee per year.

Three levels of increasing seriousness

An employee is initially entered into the AMP when CMBC identifies her with unacceptable absenteeism and gives her a letter outlining its concern and the situation is discussed informally. Attendance is reviewed quarterly and if there is no improvement, the employee is placed in level one of the program, where she is given a formal warning letter.

If attendance doesn’t improve, the employee is put into level two and CMBC asks for a medical assessment from her doctor, which includes a questionnaire from the occupational health group. If the medical information doesn’t identify a condition that prevents the employee from coming to work regularly, and the employee continues to have an attendance problem, she is moved to level three, at which point she is issued a formal letter establishing attendance targets based on the average absenteeism rate. If the targets aren’t met, CMBC holds an employment status review (ESR) at which point the employee will likely be terminated.

If the medical information reveals a condition that causes absences, the occupational health group discusses potential accommodation with the employee. If the absence that led to exceeding the attendance target was related to a worker’s compensation assault or vehicle accident, the ESR isn’t triggered.

Termination could happen “where reasonable time and opportunity have been afforded to an employee to attain acceptable levels of attendance, but whose absenteeism continues to be excessive and there is no reasonable likelihood of the employee attending work, in the future, on a regular and consistent basis.”

For privacy reasons, the health group doesn’t provide specific medical information for identified employees or the medical assessments at level two, just whether an employee has medical issues and an estimate for a return to work.

Though disability and workers’ compensation benefits were included in the overall absentee calculation, CMBC said those absences are taken into account for individual cases.

Arbitrator orders revision to AMP

In 1999, an arbitrator found the AMP was being administered in an unfair and unreasonable manner by counting time at work doing duties other than transit operator duties and absences beyond the employee’s control as part of employee absenteeism. However, these circumstances were considered individual grievances and the AMP as a whole was not considered unfair.

As a result of the grievance, CMBC was ordered to amend the AMP and clarify to its employees what circumstances would not trigger the program.

Program leads to drop in absenteeism

By September 2005, CMBC claimed the absenteeism rate for its transit operators had dropped to 7.3 per cent and about 18 days per operator per year. It estimated this had brought a cost savings of more than $50 million since the AMP’s inception in 1997. After six workers with absences caused by medical conditions progressed into the third level of the AMP, the union filed another grievance, claiming the program systemically discriminated against those employees with disabilities that caused them to miss more work than healthy employees.

Program treated employees with medical conditions adversely

The tribunal agreed on the surface that the practice of putting employees in the AMP first and then evaluating their absences created a prima facie case for discrimination.

The tribunal also said CMBC’s concern for the privacy of its employees with regard to medical information, while admirable, was problematic in the way the AMP was set up. The occupational health group provides return to work information to supervisors but not information about what is causing an employee’s absenteeism. This makes it difficult for the supervisors to properly determine whether an employee’s absenteeism is disability-related. This also prevents any consideration of accommodation and an employee requiring it must go further along in the AMP, which can cause stress and aggravate her condition.

”Decision makers do not have information before them which might enable them to make more appropriate decisions with respect to the treatment of individuals with disabilities within the AMP,” the tribunal said. “If the issue of accommodation arises, it does so only at later stages of the AMP and not as part of the initial consideration of any individual’s circumstances.”

Imposing average attendance parameters without consideration of an employee’s particular situation was discriminatory, the tribunal said. This was the case for some of the six employees in the grievance, who had chronic conditions and remained in the AMP for a long period of time because of high absenteeism from medical problems. In at least one case, an employee delayed having surgery because the time he would have missed would put him past his attendance parameters.

“The employees who testified all indicated that being placed on the AMP was highly stressful to them and being placed on parameters even more so,” the tribunal said. “These employees were keenly aware that their employment was at risk if they exceeded the attendance parameters and they would attempt to attend work when they were unwell.” The tribunal found CMBC only considered employees’ disabilities after it had already applied the general attendance standards and entered them into the AMP, it unfairly included time out of the workplace for those on gradual return to work assignments as absences, and the decision-makers weren’t properly informed to effectively consider accommodation. As a result, the company’s AMP caused systemic discrimination against employees with chronic or recurring disabilities.

Program not a bona fide occupational requirement

While CMBC established the program in good faith and for the legitimate purpose of reducing absenteeism, its lack of consideration for disabilities in the early stages of the AMP failed to meet the requirement of accommodation to undue hardship. Therefore, the tribunal ruled the AMP was not a bona fide occupational requirement.

CMBC was ordered to stop applying the AMP to employees whose attendance is affected by chronic or recurring disabilities. Each of the six employees placed in level three of the AMP who had medical conditions affecting their attendance were awarded $5,000 or $6,000. CMBC was also ordered to revise the AMP and determine compensation for employees with chronic or recurring disabilities that led to them being advanced to level three of the AMP.

For more information see:

CAW-Canada, Local 111 v. Coast Mountain Bus Co., 2008 CarswellBC 1110 (B.C. H.R.T.).

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