Ask the ExpertCategory: QuestionsManaging employees with attendance issues
hri_Admin Staff asked 4 years ago
Janice Neshevich replied 4 years ago

We have an employee who has only been with us about 7 months. It would appear that they have been away more than they have been here. They have now had 3 medical LOA’s thus far and just last week, we received a letter from their doctor clearing them to return to work with no accommodations. They came back to work and the following day called in sick. Today, they provided another doctor’s note saying they could not work yesterday and advising us they need a further week off. Any recommendations on how to handle?

1 Answers
Glenn Demby Staff answered 4 years ago

I’m not qualified or allowed to give you legal counsel for dealing with a particular situation. But I can offer some general suggestions:
First, keep in mind that there’s a critical difference between nonculpable absence, e.g., due to illness or injury, which requires accommodation and culpable absence, e.g., playing hookey or missing work for no excusable reason, that’s subject to discipline. From what you describe, you’re dealing with nonculpable absence since the employee is ill and can provide a medical note documenting that fact. So, for now, at least, it looks like you need to stay the course–asking for doctor’s notes and being prepared to make accommodations for return.
Having said that, you do have some options. Legally, the duty to accommodate applies only to the point of undue hardship. To the extent you can show that dealing with all these absences is hurting your business in a substantial way, e.g., the employee performs a crucial job that can’t be easily replaced on short notice, you may be able to justify discipline or even termination. Another legal theory is that the absences are frustrating the employee’s contract.
But be very careful. As employer, you have the burden of proving undue hardship and/or frustration of contract and, believe me, that is really hard. So you absolutely need to talk to a lawyer before doing anything disciplinary. Another thing I’d suggest is implementing an attendance management program. There’s alot of good stuff on HRI you can use to put such an arrangement into place    https://hrinsider.ca/attendance-management-program-policy-nova-scotia-version/                   https://hrinsider.ca/managing-absenteeism-8-things-include-attendance-management-program/  Search “attendance management” on HRI to find other resources.
Hope that helps and remember, taking action against a person for nonculpable absence is very tricky stuff that you need to talk to a lawyer about. Hope the general stuff above is useful but it’s no substitute for counsel. Glenn