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Tribunal topples company's attendance management program

Published on April 7, 2008 by Donna Seale

A recent decision of the British Columbia Human Rights Tribunal (C.A.W., Local 111 v. Coast Mountain Bus Co. (No. 9)) has concluded that an Attendance Management Program ("AMP") operated by the Coast Mountain Bus Company (formerly BC Transit) was structured and applied in such a way that it discriminated against employees of the company who had chronic or recurring disabilities.

The Facts – In Brief

The AMP was adopted by the company in order to address concerns about high levels of absenteeism among its employees, particularly its transit operators.  The program involved monitoring the absenteeism of all employees and identifying those with higher than average levels of absenteeism.  The employees identified would be initiated into the program and moved through three levels.  At Level 3, attendance parameters would be imposed on the employee setting out a specified number of days and number of incidents of absenteeism per year over a period of time.  If the employee failed to meet those parameters, the company would then proceed to consider whether the employee should be terminated.

The Problems with the Program

The 150 page decision detailed a number of ways in which the AMP failed to appropriately acknowledge the disabilities of employees:

1. there was a lack of communication and coordination between the two departments set up by the company to administer the AMP including an overly rigid adherence to rules in the collective agreement relating to the confidentiality of employee medical information.  This resulted in decision-makers not having full medical information necessary to determine whether an employee’s absenteeism was disability-related or to determine whether accommodation was appropriate before an employee was placed into the AMP or at the early stages of the AMP;
2. the company chose to process employees with attendance concerns through the AMP first and determine whether or if it could accommodate the employee after-the-fact.  When an employee reached Level 3, the average absenteeism rate of all other transit operators was used to establish the attendance parameters the employee had to meet.  There was no assessment conducted regarding what the parameters ought to be in light of an individual transit operator’s disability;
3. when the company did consider whether an employee’s disability-related absenteeism could be accommodated, it took too narrow a view of what its duty to accommodate entailed, focusing only on whether the employee could be moved into another job and, particularly, a job that had the potential to improve the employee’s attendance.  At no time did the company consider whether a transit operator could be accommodated in his or her own position by permitting a relaxation of the attendance rules;
4. the company counted partial days that an employee was not able to work while on a rehabilitation assignment or a gradual return-to-work as an absence that factored into the assessment of whether the employee was brought into or advanced within the AMP.  This was found to be a discriminatory penalization of employees who were seeking accommodation.

Rejection of the Company’s Defence of the Program

The Tribunal rejected the company’s argument that the structure of the AMP and the manner in which it implemented the program was a bona fide occupational requirement.  Specifically, the Tribunal concluded that the company failed to establish that it was not possible to accommodate employees with chronic or recurring disabilities outside of or within the AMP short of undue hardship.  As the AMP was set up in such a way that accommodation of an employee was not considered, if at all, until after the employee had exceeded the average attendance standard imposed upon him or her, there being no accommodation within the standard itself, the Tribunal concluded that this was contrary to legal principles established by the Supreme Court of Canada.  Moreover, although the company led evidence of the substantial cost of employee absenteeism to its overall operations, it failed to lead evidence specifically showing that accommodating employees with chronic or recurring disabilities either before they were entered into the AMP or at an early stage of the program would create an undue hardship financially or otherwise.

In the final outcome, among other remedies, the Tribunal ordered the company to cease applying the AMP to transit operators whose attendance was affected by chronic or recurring disabilities.

What Does This Mean?

In my view, this decision represents the most comprehensive explanation to date as to how the duty to accommodate factors into each aspect of a system created to manage employee attendance.  Although the Tribunal recognized employers have a significant interest in implementing ways to manage costs, both financial and otherwise, associated with excessive absenteeism of their employees, it stressed that employers cannot pursue this interest at the expense of the rights of disabled persons under human rights legislation.  This decision spells out that it will be considered discrimination to process employees with disabilities that impact their attendance into an attendance management program without first determining whether they require accommodation and, if they do, what the accommodation options are.

Employers who currently have in place an attendance management program would be wise to review that program and ensure that:

• employees are not automatically placed into the program simply because they have exceeded some particular standard of attendance.  The underlying cause of the absenteeism must be examined first;
• in examining the underlying cause of an employee’s absenteeism and before an employee is brought into the program appropriate medical information is available so that decision-makers may properly determine if an employee’s absences might be disability-related and assess accommodation options if they are;
• in assessing accommodation options for employees with disability-related absences, the assessment extends to looking at attendance expectations in addition to whether their job requires modification.  If, as a result of disability, an employee will not be able to maintain regular attendance, employers must consider whether they can accommodate the rate of absenteeism that may be associated with the particular employee’s disability.  In other words, can the employer modify what it considers acceptable attendance by, in effect, creating an attendance standard specific to the particular employee without incurring undue hardship?
• employees are not placed into the the program if the employer can accept (and therefore accommodate) the employee-specific attendance standard;
• partial days that an employee is not able to work while they are on a rehabilitation or gradual return-to-work assignment are not treated as an absence;
• anyone in the company who is involved in decision-making relating to attendance management receives appropriate training to understand what the duty to accommodate requires of them.

While attendance management programs, in principle, survived the BC Tribunal’s scrutiny, serious questions have now been raised about whether employers will realistically be able to apply such programs to employees with recurrent or chronic disabilities. 

See also:"Rights tribunal puts the brakes to bus-driver attendance check" – The Province

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Categories: Discrimination,Reasonable Accommodation

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