Case In Point
Is It Discriminatory to Include a Disability-Related Absence in an Attendance Management Policy? Appellate Court Weighs In
Date: October 20, 2017
In Canada (Attorney General) v. Bodnar, the employer sought judicial review of a decision of the Public Service Labour Relations and Employment Board (Board) in which the Board held that the inclusion of disability-related absences and absences taken for the purposes of family caregiver leave in an attendance management policy was discriminatory.
On judicial review, the Federal Court of Appeal stated that the Board had failed to consider an essential element of the test to establish a prima facie case of discrimination, namely, adverse treatment. The Court noted that there is no adverse impact on employees simply because their disability-related absences, or other absences which are protected under the Canadian Human Rights Act, are included in the initial assessment of whether they will enter into or progress through an attendance management policy. So long as the policy provides for the fact that an employee will be accommodated to the point of undue hardship, then the employee has not suffered an adverse impact. In the absence of adverse treatment, the employee cannot establish a prima facie case of discrimination.
The Federal Court of Appeal held that the Board’s decision was unreasonable and remitted the matter back to a differently constituted panel for re-determination.
The Court was careful to note that the application of attendance management policies can, indeed, adversely impact employees. Before the employee experiences any adverse treatment, such as termination of employment, employers must ensure that they have met their duty to accommodate. But, this decision represents a helpful reminder that entrance into or progression through an attendance management policy, on its own, will not be sufficient to establish a claim of discrimination