Making Sense of Attendance Management Programs
Statement of RespectOPSEU Statement of RespectHarassment or discrimination of any kind will not be tolerated at OPSEU
functions.Whenever OPSEU members gather, we welcome all peoples of the world. We
will not accept any unwelcoming words, actions or behaviours against our sisters and brothers.
We accord respect to all persons, regardless of political affiliation, including people of colour, women, men, First Nations men and women, Metis or other Aboriginal peoples, members of ethno-racial groups, people with disabilities, gays, lesbians, bisexual and transgendered/ transsexual peoples, francophones and all persons whose first language is not English.
In our diversity we will build solidarity as union sisters and brothers.If you believe that you are being harassed or discriminated against, let one of
us know and we will deal with it on the spot. If an instructor is the problem contact_____________________________here at the conference and you can contact the person for immediate assistance.
Introductions
Write Your name Where you are from One or two words about your workplace
attendance management program
Making Sense of Attendance Management Programs
GoalTo provide participants with the knowledge and tools to help defend their members from unfair attendance management program practices
Objectives:
Know What case law says Attendance Management Programs (AMP) are supposed to beWhat medical documentation the employer is entitled toWhen non-disciplinary dismissal and independent medical examinations are deemed appropriate by arbitratorsWhat strategies have been used successfully in other workplaces
FeelMore confidence to be able to defend members against unfair AMP practices
DoRecognize employer strategies and hidden agendasContrast your employers AMP with what arbitrators have said AMP’s should beExplain to members, the value of union representation for AMP programs
Course at a Glance
Session 1 Session 3
60 minutes AMP’s what they are/ what they are supposed to beIntros to participants, the issues, the courseIdentify common issuesContrast common issues with what AMP is supposed to beReview case law for attendance management programs
60 minutesStrategies to inform the membership and build the localGet the memberships cooperation/supportRate your locals readiness and next steps
15 Minute Break
60 minutesWhat Employers Are Entitled ToWhat do the members need to knowEmployer terms and strategies: independent medical exams, Non-disciplinary dismissal, and last chance agreementsDocumentation: what we need to document and why
Task Sheet 1As a table group, in the spaces below please write word or two, describing your workplaces attendance management program or your feelings towards the program, which starts with the corresponding letter next to it. (I.e. A = appropriate, D = disciplinary)
A N
B O
C P
D Q
E R
F S
G T
H U
I V
J W
K X
L Y
M Z
LEVEL ONEAbsences exceed __ occurrences
or _ days within __ months of triggering (usually same days or
occurrences’ to trigger)
Proceed to Level Two
LEVEL TWOAbsences exceed __ occurrences
or __ days within __ months of triggering
Proceed to Level Three
Absences exceed __ occurrences or __ days within __ months
(usually 6 or 12 months)
Proceed to Level One
Removed from all levels of the AMP
In the __ months following the drop in
LevelIf the employee
remains within __ occurrences or __
days, the employee will be removed from
all levels of AMP
If the non-culpable absenteeism remains within __ occurrences or __ days for __ months from the date
the level was triggered
Typical AMP – FLOW CHART
LEVEL FOURMeeting with employee, union rep &
employer representatives/senior management
Employees who have been unwilling or unable to meet attendance standards may be subject to
termination
Where the employer is satisfied based on available medical information, that there is the likelihood that the employee will be capable of satisfactory attendance in the foreseeable future, a decision to terminate may be deferred for a limit period of time
If the non-culpable absenteeism remains within __ occurrences or __ days for __ months from the date the level was triggered the
employee will drop one level to Level 1
What Case Law Says About Attendance Management Programs
Workplace Policy/Procedure
Implementation
Must provide a notice or warning that the present level of absenteeism is unacceptable
Must provide an opportunity for the employee to effect improvement
If using thresholds, WSIB and culpable absences cannot be factored into dismissal decisions
Thresholds must be a reasonable indicator of a problem existing (i.e. workplace averages or sector norms
Must take into account the employers duty to accommodate
The program cannot be applied mechanically
Counseling letters are allowable but the tone must not appear punitive or disciplinary
They cannot violate the collective agreement
Program must be communicated to the employees.
Task Sheet 3Contrast Your Workplace AMP
Use your answers on Task Sheet 2 and the questions below to have a conversation with your partner. Be prepared to share the answers from your conversation with the larger group.
Which of the case law principles does the employer do a poor job of adhering to?
Does the employer’s AMP policy incorporate the case law principles outlined on Task Sheet 2?
Is there a difference between the AMP policy and how the employer implements the AMP program?
If the employer is not following the case law principles, why do you think that is?
AMP T/F QuizAttendance management programs are just meant to harass me.
My medical information is none of the employers business.
The employer cannot fire me if I am legitimately sick.
Last chance agreements are not worth the paper they are written on.
The employer cannot tell me which doctor to see.
My doctor’s note cannot be challenged by the employer.
A doctor’s note needs to only say that I was sick and if I can come back to work.
Attendance letters are meant to discipline me.
If I sign a last chance agreement I forfeit my right to grieve dismissal.
If I sign a “Waver of Representation” I’m not entitled to union representation
If I am only off for a few days here and there I am safer then if I am off for long chunks of time
The employer does not have to accommodate an employee if they do not know the employee has a disability
Task Sheet 4Critiquing Dr Notes
Using the Dr note and scenario assigned indicate:What you liked about the note?
What you would add (if anything)?
What you might remove (if anything)?
Your groups reasons for your decisions
Scenario 1
Dr J Erving, MD. June 7, 2011
To Whom It May Concern: Joan is a patient under my care. She was off work due to illness May 17-20. At present Joan can return to full duties.
Dr Erving
Scenario 2Doctors Note: Dr J. Rochette, MD. June 7, 2011To Whom It May Concern: Renaldo is a patient under my care. He was off work due to illness May 17-20. At present Renaldo can return to full duties. Dr Rochette
Scenario 3Doctors Note: Dr D. Igali, MD. June 7, 2011To Whom It May Concern: Perdita is a patient under my care. She was off work due to a cardio respiratory illness since May 24th. At present Perdita can return to full duties with the following restrictions:
Frequent rest breaks (10 minutes every hour)No heavy lifting (weights over 10kg)
I plan to reassess Perdita in two weeks time (June 21st ) to determine any change in restrictions. Dr D. Igali
Scenario 4Dr C. Petitclerc, MD. June 7, 2011To Whom It May Concern: Daniel is a patient under my care. He has been off work due to complications from his diabetes. He is currently undergoing insulin treatments and should be able to gradually return to work June 13th. Currently he has limited mobility and cardiovascular reserve. I expect that this will improve as his condition improves. I have included a return to work plan below.Return to work plan: Week 1: 4 hour shiftsWeek 2: 6 hour shiftsWeek 3: Full daysGeneral restrictions:Limited walkingNo heavy lifting Frequent breaks Dr Petitclerc
Task Sheet 5Defining IME, Non-Disciplinary Dismissal, Last Chance
Agreements
Answer the following questions using your past experiences, knowledge of your collective agreement, or workplace policies. If you are unsure the term assigned to your group, answer the questions from the perspective of what seems reasonable. Insert the term you have been assigned into the blanks below.What is __________?When is _______ deemed appropriate?What are the limitations on the employer when pursuing________? What are the employee’s responsibilities when facing _________?Be prepared to share your answers with the rest of the group.
Documentation
“Documentation is important in the areas of duty to
accommodate, WSIB, and attendance management”
Documentation Work Sheet
Before the Meeting
During After
Task Sheet 6Strategies for Member Cooperation
In your group create a strategy to build membership support and cooperation using the heading that your group has chosen. Your strategy could include:
Who you are going to target your message to
How you are going to achieve your goals
What your message will be
What you will need for success
Be prepared to share your answers with the class
OPSEU Successes Context Strategy Used Results
Challenged an attendance management program
Policy grievance over Correction’s ASMP Keller decision.
Employer must:Treat members on a case by case basis Remove absences that arise from disabilityPreclude WSIB absences from Level 4 determinations
Successfully challenged a non-disciplinary dismissal termination
Filed an individual grievance that was “fast tracked” to arbitration.
Won the arbitration due to the employers refusal to consider supplemental medical information
Successfully challenged an arbitrary threshold
Policy grievance currently in the works against the Corrections ASMP
Awaiting decision
Got an accommodation through the AMP process
One OPSEU worksite had 22 members in the AMP. OPSEU used a training program to equip stewards to challenge the program
Fifty percent of the members in the program have been moved to a lower level of the program or removed entirely
Task Sheet 7 Taking it back to the Local
When I first get back to the local I would like to ______________________________________________________________________________________________________________________________
Within one month I would like to ______________________________________________________________________________________________________________________________
In six months I would like to ______________________________________________________________________________________________________________________________
Possible actions to take over these time frames include:•Develop AMP specialists in the local•Host lunch and learn•GMM agenda item•LMM/ERC agenda item•Review workplace policy and procedure