By David Wong

Attendance management programs themselves aren’t discriminatory — they just need to be carefully designed and properly applied. Such is the latest conclusion in continuing litigation between Coast Mountain Bus Company Ltd. and the Canadian Auto Workers, a battle over an attendance management program covering transit operators in the Greater Vancouver region in British Columbia.

In May 2009, we commented on the British Columbia Supreme Court’s decision in which the court largely accepted the employer’s program.

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by Chuck Harrison

When warehouse worker Dan Tomasella was injured in a car accident in 2008, his employer did the right thing: Maersk Distribution accommodated his graduated return to work and provided him with light duties.

Maersk stepped up again when Tomasella’s shoulder injury was further aggravated. But when the economy took a turn for the worse, Maersk laid him off because of his disability. A labor arbitrator has now found that the employer’s human rights “duty to accommodate” substantially changed when its business was sideswiped by the crashing economy.

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By Gulu Punia and Kyla Stott-Jess

When an employee is absent because of long-term disability, employers naturally wonder how long they must wait before the employment contract has been “frustrated.” If it has, the employment contract can be terminated. According to the recent Ontario decision of Naccarato v. Costco Wholesale Canada Ltd., however, the question isn’t “how long” but rather “what is the prognosis?”

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By Patrick Gannon

The G20 Summit of world leaders will be in Toronto June 26-27. The summit is expected to draw considerable attention and thousands of protesters from around the world. Like the Vancouver 2010 Winter Olympics, there will be intensive security measures and lots of potential disruptions.

As the summit will be held at a convention center in the downtown core, it gives rise to many issues for downtown employers. And employers outside the downtown area will be affected too, given that the central hub for commuter trains is in the highest security zone. What can employers expect and how should they respond when faced with this kind of massive, high-security event in their neighborhood? read more…

By Donna Gallant

As we reported four weeks ago (Shocking Arbitration Decision in Ontario), a prominent Canadian arbitrator recently ordered the Greater Toronto Airports Authority (GTAA) to pay more than $500,000 in damages, finding that it failed to take reasonable steps to ascertain the truth about an employee’s medical condition and fired her for sick leave fraud. The question is whether the door to higher damage awards in Canadian labor relations just got a whole lot wider.

What happened?
On February 19, 2004, the grievor (a 23-year employee with a clean record) underwent arthroscopic surgery as a result of a workplace knee injury. On February 24, her surgeon wrote a note authorizing her to be off work for four weeks to recuperate.

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By Katie Clayton and Farrah Sunderani

With the Vancouver 2010 Olympic and Paralympic Winter Games having just begun, there will be several implications on the workplace. Past Olympic cities have reported high levels of absenteeism – both approved and unapproved – for employees wishing to attend the events, partake in the activities, or volunteer.

Employers outside Vancouver may face similar challenges – where employees call in “sick” in order to tune in to their favorite event. And then there are the transit disruptions in Vancouver itself. How will employers manage them while meeting client expectations and maintaining productivity? All of this while at the same time supporting the Olympic Spirit!

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Should employees receive benefits coverage for time off due to cosmetic surgery? At least two Canadian labor arbitrators think so.

In the most recent decision on point, North Bay General Hospital v. Ontario Nurses’ Assn. [2009] OLAA No. 47, 181 LAC (4th) 179 (Stephens), an employee was awarded sick pay coverage for time off while she recovered from cosmetic skin removal surgery.

The employee, a nurse, was left with excess and baggy skin after she lost a “considerable amount of weight.” In order to get rid of the excess skin, the employee decided that she would have it removed.

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Managing absenteeism can be a significant challenge for Canadian employers. A wide variety of factual situations may be complicated by employment standards, privacy and human rights laws, as well as any applicable union agreements.

An example of the potential challenges of implementing an attendance management program (AMP) is the decade-long battle between Coast Mountain Bus Company Ltd. (CMBC) and the Canadian Auto Workers. It involved an AMP covering transit operators in the Greater Vancouver region of British Columbia.

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by Rachel Ravary
McCarthy Tetrault

Last week’s decision in Hydro Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec 2008 SCC 43 is good news for employers – finally there is a clear limit to your duty to accommodate employees who are chronically absent from work.

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by Daniel Pugen
McCarthy Tetrault

An increasingly difficult task for HR professionals is managing absences related to injury and illness. How far can you go to make an employee prove he or she is legitimately ill or legitimately able to return to work without restriction? The following are some tips to help your Canadian business manage an employee’s absence from work as well as his or her return to work.

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