Attendance management as a method of disability management the value and limitations
Employers are well-aware of the challenges arising from the application of the duty to accommodate. Those challenges are made all the more difficult by recent developments in the case law, particularly in the area of chronic innocent absenteeism. Absenteeism is either culpable or innocent. Culpable absenteeism refers to absences for which the employee is responsible and for which there is no reasonable excuse. Common examples include sleeping in and failure to arrange transportation to get to work. Innocent (non-culpable) absenteeism, on the other hand, refers to absences caused by circumstances that are outside of the employee’s control. This includes absences due to illness or disability, or absences that are otherwise justifiable.
The focus of this paper is on innocent absenteeism due to disability and the implications for employers. This paper will discuss recent developments in the law and provide recommendations with respect to maintaining attendance management programs. We begin with an explanation of the legal framework, including a definition of the term “disability”. This general discussion will be followed by a review of two recent cases dealing with chronic innocent absenteeism that assist in defining the nature of employer and employee obligations in this area. Finally, we discuss the implications of the decisions on the workplace generally and attendance management programs specifically.
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