Employer Ordered to Suspend Sick Leave Policy
Legal Affairs - Workplace Today®
A decision by
a board of inquiry appointed by the Human Rights Commission of Newfoundland and Labrador has ordered an employer to suspend its sick leave policy that monitors the top 20% of sick time users for possible abuse.
A woman filed a human rights complaint against her employer, a provincial government department, alleging she was discriminated against based on her disability and that department officials harassed her with regard to that disability when they applied the sick leave policy to her and investigated her absenteeism.
The woman had worked for 23 years with that department when her ear collapsed. She was off work for several days to recover from the injury. She gave her employer medical verification of the need to be off work. Her symptoms included a loss of balance and the inability to open her mouth.
The woman, who is a union member, felt she was entitled to two sick days a month pursuant to her collective agreement.
She returned to work the next month. She had not used any more sick leave and had no health problems and no supervisor brought up the issue of sick leave, she testified. Four months after returning to work, she was asked to attend a meeting with her supervisor to discuss her sick leave use. The meeting took place in a public part of the workplace where visitors could overhear the conversation with her supervisor. She was also asked to have her doctor complete a detailed medical form.
The woman was being questioned as part of the department’s 10-year-old sick leave policy, which targeted the top 20% of sick leave users for special monitoring, including meetings with supervisors to counsel these employees on the importance of good attendance. The policy provided for possible disciplinary action if the employees did not improve their attendance after the counselling.
The woman testified at the board of inquiry hearing that following the meeting with her supervisor, she had not been disciplined, was not denied sick leave, not prevented from returning to work, and there were no repercussions or further reprisals from her employer.
The woman’s supervisor said that the purpose of meeting with employees who have above average sick day use is to get them to justify their leave taken. A block of days is more acceptable to management than sporadic use of sick leave, he said. Excessive sick leave can have an effect on the workplace such as requiring other staff to work overtime to cover for people who are absent, he testified.
A higher-ranking official in the department testified that the sick leave policy is aimed at curbing absenteeism, which he said causes a “financial problem,” including the need to cover off shifts. He estimated that paying overtime to replace those on sick leave costs about $250,000 over a six-month period. Management’s approach in the meetings with employees who had more absences was to tell them they had been targeted and ask them to be more “conscientious” in the future.
The department’s director of human resources testified that the policy is not intended to be “punitive” but to get employees back to work as soon as possible, similar to the philosophy of workers’ compensation boards.
The Human Rights Commission argued that requiring the woman to produce a medical certificate violated her rights because other sick leave users who were not disabled did not have to do that.
The board of inquiry found that applying the sick leave policy to the woman with ear troubles amounted to harassment and discrimination based on her disability. Because targeting people for counselling was done with a “mechanical, punitive, and disciplinary” approach, the board found, the employer had violated the requirement under human rights law of individual accommodation. “(T)he fact that there is a real likelihood of discipline because the employee does not meet the so-called ‘quota’ or ‘target’ or if the employee falls within a group or percentage of so-called sick leave ‘users,’ once again reflects the very strong underlying disciplinary nature of the Respondent’s Sick Leave Policy,” the adjudicator wrote.
People inflicted with a collapsed ear are unlikely to benefit from counselling on the importance of good attendance, the board said. The employer did not prove that it had tried to accommodate the woman’s disability to the point of undue hardship as required in the provincial human rights code.
The employer was ordered to suspend its sick leave policy, to draft a new one and forward it to the human rights commission for review and comment, and to pay the woman $3,000 for general damages. The lawyer for the employer had argued that striking down its sick leave policy was “extreme.”
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