Absenteeism, Destructive Workplace Behaviour, Root Causes

3:40 Weds Dec 5, 2012 Infonex 1045 Whitehorse

Chris Hylton800 449-5866 chris@hylton.ca

Agenda • Types of absenteeism: culpable,

innocent: making the distinction • Addressing the root causes of

absenteeism to determine if it is a symptom of stress, burn-out, addictions etc.

• Proactive strategies and guidance to rectify the behaviour

• Attendance policy: tips and strategies • Ignoring it won't make it go away: how

to communicate expectations, policy and confront the issue

• Determining when termination is appropriate

2

What attendance issues we can try and solve for you in

this session?

3Open discussion

4

Employers must be knowledgeable about absences, how

much they have to tolerate and how they can respond effectively.

FORMS OF ABSENTEEISM

Innocent Absenteeism Culpable Absenteeism

Long Term

Condition

Repetitive Short Term

Absences

CANNOT IMPOSE DISCIPLINE! DISCIPLINE WARRANTED

INNOCENT ABSENTEEISM Disability, illness, other legitimate health

reason Discipline is inappropriate May lead to non-disciplinary termination

if: Employee has record of

excessive absenteeism Employee is incapable of

regular attendance in the future

Do List

1. Track absences2. Provide warnings3. Provide opportunity to improve4. Be consistent

MONITORING INNOCENT ABSENTEEISM Institute attendance management program

AMP Understand the actual levels of

absenteeism Analyze and determine where problems are Record all incidents of absenteeism and

lates

MANAGING CULPABLE ABSENTEEISM

Don’t rigidly adhere to defined policies Disciplinary policies are helpful All absences are presumed innocent

unless proven culpable (although the employer may put employees on notice that they need to substantiate the reasons for an absence)

If culpable, then discipline may be warranted

Use progressive discipline

FEATURES OF ATTENDANCE MANAGEMENT PROGRAMS

Direct attention to improving health and safety;

Provide health services and facilities; Provide employee assistance programs; Provide attendance incentive programs; Collect and publish attendance statistics; Set attendance goals and monitor

achievement;

FEATURES OF Program Provide feedback, counselling and other

forms of support; Impose discipline when warranted; and Implement last chance agreements when

all else fails (more common in the unionized setting).

Termination:THE LAST RESORT

Employer has to demonstrate: Record of excessive absenteeism Incapable of regular attendance in the

future Accommodation to the point of undue

hardship Follow program of progressive

discipline Terminate with caution = there is

always a risk of a grievance or a human rights complaint

DOCTRINE OF FRUSTRATION

Absenteeism resulting from illness or disability is not cause to terminate

Test for frustration of contract: Is it temporary or permanent Does it prevents performance of essential duties of

position, even after accommodation

FACTORS TO CONSIDER Terms of any existing contract Anticipated term of employment Nature of the employment Nature of the illness or injury &

prospects for recovery Period of past employment

BOTTOM LINE

The longer the relationship +

The greater indicators of commitment and loyalty

=The more difficult it will be to

establish frustration

TERMINATION & SEVERANCE

Even if frustrated, employer will have to pay termination and severance pay in accordance with Employement Standards

Ontario Nurses’ Association v. St. Joseph’s General Hospital, [2006] O.L.A.A. No. 155 (Randall)

Now reflected in changes to Reg. 288/01 – no longer an exemption from termination or severance pay under Employement Standards

REINSTATEMENT OF EXCESSIVELY ABSENT EMPLOYEES

Was there a triggering absence? Were the absences blameworthy or

innocent? If innocent, what is the prognosis for future

attendance? Did the employer adequately notify the

employee of expectations with respect to attendance?

Did the employer warn the employee that discharge may result if attendance did not improve?

What was the workplace average absenteeism rate?

LAST CHANCE AGREEMENT Similar to a last chance award, but

avoids the time, expense of arbitration – negotiated by the parties;

Usually establish a very high attendance standard;

Additional conditions, as applicable; Complete abstinence from the

substance at issue; Completion of recovery program; Random drug testing;

Each condition must be lawful.

LAST CHANCE AGREEMENTS

Purpose: Keeps employee in the workplace, but imposes stringent conditions

Ensures employee knows job is in jeopardy if performance does not improve

May promote rehabilitation

When Are Last Chance Agreements Appropriate? Where an employee has been

unresponsive to progressive discipline or efforts to address an attendance problem (particularly if it’s related to an addiction or other disability)

Should not be used too early in the process of dealing with a problem employee and is not a substitute for other accommodation options

A last chance agreement should only be part of a broader effort to accommodate the employee’s underlying condition

Last Chance Agreements should Include

• An express recognition of the nature of the employee’s problem (e.g., addiction or alcoholism) and efforts the employer has made to accommodate the employee

• Recognition that the employer and, if applicable, union have taken all reasonable steps necessary to accommodate the employee to the point of undue hardship

• Specific details of the conditions applied to the employee’s continued employment, including details of any treatment, after-care, attendance expectations, etc., as well as the employee’s commitment to comply with these conditions

Last Chance Agreements:What They Should Include (cont’d)

A provision expressly stating that breach of any condition of the agreement will result in the employee’s discharge

Agreement that reinstatement of the employee following a breach of the agreement would amount to undue hardship

Agreement that failure to discharge for breach of the agreement does not constitute waiver

An express prohibition on an arbitrator substituting any lesser penalty in the event that there is a breach

A duration – generally never longer than 2 years

Benefits of an Enforceable Last Chance Agreement Provides an additional opportunity for an

employee to salvage his/her employment Provides the employee with a ‘wake-up

call’ – often those who suffer from addictions will not seek and pursue treatment until they lose their employment

May be viewed as being one aspect of the employer’s duty to accommodate (provided that it is complements other efforts)

Why bother?Direct Costs Replacement of absent worker Loss of productivity Sick leave with pay and benefitsIndirect Costs Reduced service to patients and larger

community Damage to morale of other employees Time spent managing employee and/or

claim

Types of Absenteeism Innocent (non culpable)

absenteeism: individuals are legitimately away due to health issues

Culpable absenteeism: individuals not validly away; are utilizing sick leave for purposes other than health issues

Absence Management Plan Monitors

Innocent (non-culpable) Absenteeism

Culpable absenteeism is a disciplinary issue and once established, should not be dealt with under AMP

However…..tracking all absenteeism can be helpful in determining culpable absenteeism

Legal Validity Consistent with Collective Agreement Brought to the attention of employees Reasonable and Not Discriminatory Clear and Consistently enforced

Legal ValidityAbsenteeism Management Process must allow for: Flexibility and consideration of

individual circumstances “Progressive escalating response” Not disciplinary

(Hospital Employees Union v. Health Employers Association of BC (2002) BCLRBD No. 112)

Facts about CLS’ AMP Program Implemented May 2005 Revisions July 2008 Four Step Program Target 3.5% absenteeism (9 days/year) Absenteeism rate range 3.73% to 4.5% Includes Sick with pay; Sick without pay;

Medical Appointments

CLS ISSUES

People working when sick Targeting right people Target vs. Average How to exit the program Ownership and accountability Time required to manage program EDUCATION!!!

UNION ISSUES People working when sick Targeting right people Target vs. Average How to exit the program Concern singling people out Early intervention – intrusive Supervisor abuse – “I’ll be watching you” EDUCATION!!!

What Reports Exist? Monthly Sick Time Reports

AMP Reports

Employee Absence Calendars

ReportsSicktime Usage (52 week period ending May 16, 2008)

Manager: Edward QuartermaineSupervisor: Ned Ashton

Cost Centre Emp No

Employee Name (Last, First)

Medical Appts

Sick Under

30

Sick Over

30

Sick (Traded)

Total Sick

All Hours

Worked

All Hours

In AMP

EE % Sick

Corp Target

Cost Centre

Avg71410000000 1714 BARRETT, BRENDA 0.00 72.75 0.00 0.00 72.75 750.00 822.75 No 8.84% 3.50% 3.85%71410000000 1474 CORINTHOS, SONNY 2.25 251.00 0.00 0.00 253.25 1490.75 1744.00 Yes 14.52% 3.50% 3.85%71410000000 1594 JAX, JASPER 0.00 31.00 0.00 7.75 38.75 1570.56 1609.31 No 2.41% 3.50% 3.85%71410000000 1234 MORGAN, JASON 0.00 3.00 0.00 0.00 3.00 1553.50 1556.50 No 0.19% 3.50% 3.85%71410000000 1354 WEBBER, ELIZABETH 0.00 38.75 0.00 0.00 38.75 1976.25 2015.00 Yes 1.92% 3.50% 3.85%71410000001 1834 CASSEDINE, NIKOLAS 0.00 7.00 0.00 0.00 7.00 2008.00 2015.00 No 0.35% 3.50% 5.59%71410000001 1954 DAVIS, ALEXIS 5.00 40.75 0.00 0.00 45.75 1811.63 1857.38 No 2.46% 3.50% 5.59%71410000001 2074 HOWARD, KATE 25.00 230.00 0.00 0.00 255.00 1380.69 1635.69 No 15.59% 3.50% 5.59%

ReportsManager:Supervisor:52 wk Period Ending:

Emp No

Employee Name (Last, First) FTE

Sick Hours

Worked Hours

All Hours

EE % Sick

Previously In Program

Out of the Program

(dd/mm/yy)Comments

1714 BARRETT, BRENDA 0.41 72.75 750.00 822.75 8.84% No

Supervisor Feedback:Calendar Request: Yes/No Comments:Put in Step I: Yes/No

2074 HOWARD, KATE 0.81 255.00 1380.69 1635.69 15.59% NoSupervisor Feedback:Calendar Request: Yes/No Comments:Put in Step I: Yes/No

30 May 07 - Employee close to target. Watch for now. 12 Sept 07 - Employee reduced status to casual. 20 Nov 07 - Employee moved into perm .4 position. Sicktime 5.25% .

Employees who are over 3.5% and are not in the AMP

Ned AshtonMay 16, 2008

Edward Quartermaine

ReportsManager: Edward QuartermaineSupervisor: Ned Ashton52 wk Period Ending: May 16, 2008

Functional Centre

Emp No

Employee Name (Last, First)

Follow-Up Date

Percent EE Sick

Step I Information Step I I Information

Step II I Information

71410000000 1474 CORINTHOS, SONNY 15-Apr-08 14.52% Date into Step 1: September 24, 2007 Date into Step II: Date into Step III:24 Sept 07 - rate at 5.59% . Entered into AMP

Supervisor Feedback:Calendar Request: Yes/No Request Letter: Yes/NoNext Follow Up Date: If no, provide reason:

71410000000 1354 WEBBER, ELIZABETH 03-Jul-08 1.92% Date into Step 1: January 24, 200724 Jan 07 - rate at 5.59% . Entered into AMP07 Jul 07 - rate at 7.50% . Send follow-up letter, continue to monitor28 Dec 07 - rate at 3.7% . Send follow-up letter, rate improved

Supervisor Feedback:Calendar Request: Yes/No Request Letter: Yes/NoNext Follow Up Date: If no, provide reason:

Follow-Up for Employees in AMP

Process

H R C o m p le te s R e q u es te d A c tioni.e . L e tte rs g e ne ra te d , C a le nd a rs g en e ra ted

S u p e rv iso r R e tu rn s C om p le te d R ep o rts to H R- N ote s En te re d in to Da tab a se

S u p erv iso r C o m p le te s w ith C o m m e n ts

S u p e rv iso r C o n su lts w ith H R a s N e e d ed

In d ivid u a l R e po rts S e ntto S up e rviso rs

- E m p lo ye e s o ver 3 .5% an d a re no t in th e A M P- F o llow -u p fo r E m p lo ye es in the A M P

R e po rts G en e ra tedb y H R

What to Consider When Entering Employees Into AMP?

Are they over the corporate standard of 3.50%?

Are they over the departmental average? How long have they been over the

standard? By how much are they above the

standard? How many incidents of illness are there? Is this an isolated incident with low

probability of recurrence? Is absenteeism related to a disability?

What to Consider When Entering Employees Into AMP?

What is their length of service? Is the employee participating in a

graduated RTW plan? Has the employee achieved a full RTW with

no restrictions? Are there any unusual circumstances that

may have precipitated a spike in absenteeism?

Has the person be at Step 1 or 2 previously?

Does the employee have a chronic illness?

What to Consider When Entering Employees Into AMP?

Consideration for enrolment is over the corporate standard for a period of at least six months

If you have initial concerns in determining entrance into AMP, contact your HR consultant

Step 1 Step 1: Informal Notification, Initial

Concern

Notification package provided to employee Contains absence history, AMP process,

internal and external support Goal is to inform employee and offer

education

Step 2 Formal Discussion, Continued Concern

Supervisor and employee meet Union representation is offered Purpose is to determine of there are

underlying health issues A referral to Occupational Health and

Wellness may be made

Step 3 Formal Discussion, Advance Concern

Supervisor and employee meet Union Representation offered Attempt to get at underlying issues Mandatory referral to Occupational Health

and Wellness

Step 4 Employment Discussion

Supervisor and Employee meet Union Representation required Focus on continued employment

relationship in serious jeopardy Employee is placed on a 90 day trial period.

Legal ValidityTermination for Non-Culpable absenteeism

Past record of excessive absenteeism No reasonable expectation or prospect of

regular attendance in the future Employee has been warned multiple

times and knew expectations and possible outcomes

If there is a disability, it has been accommodated to the point of undue hardship

When do Employees move to the next step?

Where the level of absenteeism has not improved.

Where the level of absenteeism has increased.

Where an employee has been non-compliant in recommendations for improvement.

A reasonable amount of time has lapsed since entering the previous step.

AMP Letters

Follow up letters should be sent every 3-6 months so the employee can see their progress – Employer obligation!!

A separate file is kept in HR for each employee in AMP

How Are Employees Removed From AMP? Steps 1 & 2

Maintain sick time average below corporate standard for at least six months

Step 3 Maintain sick time average below corporate

standard for at least nine months Step 4

Maintain sick time average below corporate standard for at least twelve months, evaluated on a case-by-case basis

What Works? Metrics Organizational Target (ie. 3.5%) Regular Communication Supervisor Buy-In and Education Consistency in the message and actions Involving the Union

What Works (Cont’d.) Not one size fits all approach. Absenteeism Management Policy Supervisor tools: Guidelines, Letter

Templates, Discussion Templates Highlighting the Exit strategy for

employees as the goal.

What Doesn’t Work? Lack of supervisor buy-in and education Not being on top of the program Blanket policies or actions Chronic Illness Employees High maintenance – Do the Cost-Benefit

Analysis

Next Steps Integrated Health Program Lead – Occupational Health and Wellness Focus on hi usage Supervisor buy-in

71.30%

8.60%

0.14%

18.65%0.49% 0.82%

Medical Appts from Sick BankSick under 30 daysSick over 30 daysSick OtherSick No PaySick (Pick up Shift)

Distribution of Sick hours

Sick NotesGuidelines:1. Is the employee in AMP?2. What is the employee’s current

absenteeism rate?3. Does the employee have patterns of

calling in sick on certain days/weekends?

4. Is there a written requirement to provide sick notes as a result of an agreement?

5. Has the employee requested the same time off and been denied?

Question & AnswerQ: If an employee is placed in the program, is that considered disciplinary?

A: Absolutely not! The purpose of the program is to provide support and assistance to employees with a goal of achieving regular attendance at work and meeting the corporate absenteeism standards.

Question & AnswerQ The letters to the employees may give

the impression of being punitive. Is there a different approach?

A It is the employer’s obligation to follow up with employees so they can see their progress. In addition to the standard letters, supervisors may choose to meet with employees for a verbal follow up and discussion or they can work with HR to tailor the follow up letter.

Question & AnswerQ: What do you do when you have employees that continually run without any sick time in their banks, and they don’t care if they are still sick and don’t get paid for it?

A: If this is the case, they are likely a good candidate for AMP. However, they would get coded unpaid sick for this time – not vacation, banked OT, etc.

Question & AnswerQ: What if I have an employee who self-identifies an underlying medical condition that affects their attendance?

A: The employee should be referred to the OH&W office as per the Disability Management process. Employee’s may or may not continue to be managed through the AMP program depending on the nature of the illness. You may be required to accommodate to the point of undue hardship.

Question & Answer

Q: What can you do if proof of illness is required and the employee does not provide it?

A: The employee should not be paid from their sick bank unless the note is provided. They should be coded unpaid leave of absence, unless you can prove abuse of sick leave.

Thank you for the opportunity to meet today!

Tel 403 264 5288 or 800 449 5866 (800 4hylton)

chris@hylton.ca

61

CG Hylton Inc

References http://iweb/library/CorporateManuals/HR/5

.7.pdf http://iweb/Library/HRRefGuideIndex.htm

Slides adapted from Calgary Lab Services & Filion Wakely Thorup Angeletti presentations