Attendance Management Programs: Keeping the Wolf at Bay (Professional Relations Services)

Rather than addressing job-related issues (excessive workload, large class sizes, poor management techniques) that  may be contributing to  absenteeism, Ontario school boards  have decided to “assist” their  employees by  implementing  attendance management  programs (AMPs). But behind the  seemingly benign face of a board’s AMP lurks a wolf whose intent may be far from harmless.  It is important to know your rights when confronted by this wolf.

What is an AMP?
The  term   attendance  management  program encompasses a diverse range of  activities  used by  employers to  manage  workplace  attendance. AMPs monitor “innocent”  absenteeism – absences caused by factors outside the employee’s control (e.g.,  illness,  injury,  transportation breakdown, family problems).  AMPs generally consist of progressive degrees of  intervention  with  the  goal of  improving the  attendance of  employees  who exceed a certain threshold of absenteeism.

School boards claim that AMPs are nondisciplinary and a  benevolent  way of ensuring ailing teachers get  the  support they  need.  However, ETFO members  report experiencing stress,  intimidation, lowered morale, and a  sense that  their privacy  is  under assault during their encounters with  AMPs.  For  some,   particularly those  with disabilities, chronic health conditions,  and child care or elder care issues, the increasingly intrusive  scrutiny traps them in  the jaws of a predatory program that  can conclude in termination of employment.

ETFO’s concerns
AMPs were developed  without consultation with or input from unions and employee  groups. The number of   absences  that  activate  scrutiny  is arbitrary and varies from board to board – in one board, it may be 10 absences during a school year, while in another it  takes 20 absences  before an employee is  contacted. Because school boards have been reluctant to  share their data, it  has been difficult to determine  how they are compiling  information  about absences or whether the data they are using are relevant. It’s  impossible to know whether, for example, a  board is counting partial days of absence as full days or including injuries sustained at work.

ETFO has learned that some managers of these programs lack the experience and training necessary to counsel  members  in  an appropriate  and sensitive manner. They are not  informing ETFO members   of  their  right  to  union  representation during the  AMP process, and are asking unnecessarily personal and intrusive questions about medical history, home life, and lifestyle choices.

You do not lose all your privacy rights simply because you are absent from work
Although it’s generally permissible  for employers to expect regular attendance  and to monitor the use  of  sick  days,  there are restrictions on  the degree of  scrutiny they can use. In  most cases, the employer  is limited to receiving  only enough information to  confirm that  there is  a  medical issue that justifies an absence from work  or that confirms the  requirement to accommodate a disability. Employees  are  not required (and should not)  supply information  to  an  employer about medical history, test  results,  medical conditions not directly related to the absence, or the names of treating physicians. An employer is not entitled, in  most  circumstances, to  ask an  employee to reveal the  name of their illness or the  nature of their disability. Contact the federation  as soon as possible  if you receive such a request.

 Disabilities must  be considered
AMPs  must  operate  within  the  confines  of Ontario’s human rights  legislation; so, for exam­ple, employers cannot treat workplace absentee­ism  of  employees  with  disabilities  or  chronic medical conditions in the same way as they do the  absenteeism  of  the  rest  of  the  workforce. School boards have a legal duty to accommodate persons with disabilities  and  recurring illnesses, to the point of undue hardship.

The courts and  human rights  tribunals  have agreed that  applying the same attendance  expec­ tations  to disabled and  non-disabled employees is  discriminatory  because  disabled  employees are  more likely to  end  up progressing through the  levels of the  AMP. Courts and  human rights tribunals have also determined that  AMPs must

• adhere to the Ontario Human Rights Code, privacy legislation, and collective agreement provisions
• safeguard the privacy and confidentiality of an employee’s medical information
• avoid including in an employee’s absenteeism rate absences due to workplace injury, pregnancy, and holy day leaves
• use a flexible and nonpunitive approach to attendance  management that takes into account personal circumstances, family status,  or disability.

Know your  rights
ETFO collective agreements provide members with paid sick days. Members may use sick  leave in accordance with the provisions of those collective agreements. These sick days recognize that teach­ers are exposed to  many germs and can pass on their own germs to many others. Remember SARS? The avian flu?  Public health officials tell  us, “if you are sick, stay home.” At the same time, keep in mind that  innocent absenteeism can result in job loss, so be cautious when board personnel ask you how you are using sick leave. You are advised to

• keep records of absences and ensure that the board’s record is accurate
• contact your local president or the provincial office as soon as possible if a board staff member asks you about your use of sick days
• safeguard your right to privacy by not disclosing more medical information  than an employer is entitled  to receive
• consult with ETFO  before signing any document related to your use of sick days
• refrain from signing open-ended authorizations allowing a school board to obtain personal medical information
• attend  any meeting about absenteeism accompanied by a local or provincial  ETFO representative
• politely excuse yourself from meetings that unexpectedly turn out to be about your use of sick days and state  that you would like the meeting postponed until federation advice and/or representation is available.

Becoming familiar with  your legal  rights,  your human  rights,  and  your  collective  agreement entitlements  is  critical,  given  the  potentially serious  consequences of  workplace absenteeism. Forewarned is forearmed when the goal is to keep the AMP wolf at bay.