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ABSENTEEISM, DISABILITY AND THE DUTY TO Reset the Dial with Some Real-World Experience REMARKS BY Moya Greene To the Canadian Bar Association Conference
It's always a pleasure to come home. Anyone raised here knows that you can leave Newfoundland, but it never leaves you! There is much that I owe to my home province - a wonderful affordable education; an abiding sense of place; and the good grounding I received at the Law Offices of O'Dea Earle at the start of my career. To members of the Bar, I thank you, as the CEO of Canada's 7th largest employer, for this opportunity to address very serious problems in employment law as it relates to disabilities. I say law - we are really talking about 3 areas of the law: Human Rights; Workers Compensation; and Labour law. Major changes have occurred in this field, culminating last year, with the Federal Court of Appeal decision in Désormeaux vs. the Ottawa-Carleton Regional Transit Authority. There is now an urgent need to understand the serious and growing problems that employers face. With the best of intentions for building a caring and inclusive society, one in which Canadians with disabilities could participate in the civic and economic life of their communities, we enacted human rights, workers compensation, and other laws to prevent discrimination on the grounds of disability. These laws properly imposed clear duties on employers to make room for the contribution of the disabled in Canadian workplaces, and to pay compensation if the work itself causes a disability. Those goals remain worthwhile, legitimate, laudable. But those goals are getting lost in the current state of disability law, where we are creating a work culture in which coming to work is optional; and doing the whole job is not required. How has this happened? First, almost anything can now be a disability. Tribunals, arbitrators and judges have said smoking is a disability that must be accommodated; so is unspecified pain; and drug addiction. Being overweight is too. Allergies constitute a disability. Repetitive strain is a disability. The latest in Quebec is stress. That too, is a disability Not long ago, ' there was a fundamental principle in the employment contract: it was that people had to come to work in order to stay on the payroll. That, remarkably, is no longer clear cut. As corporate counsel, particularly if you are the counsel to large industrial, manufacturing or service businesses, you already know what has happened. Maybe on the executive teams of your companies you have left all of this to your HR professionals and your front line to cope with as best they can. As CEO of Canada Post, we can no longer do that. Our problem is now so widespread, this it has become our biggest problem. With ever expanding definitions of disability, and with no real limits on the duty to accommodate, chronic absence gets justified, and the job you hired and still pay someone to do, may not be the one he or she actually does. Let me explain. The job he or she does could well be a "rebundled" job made up of the easier tasks of several jobs; or tasks done only a few hours a day. That's called modified duties. At Canada Post, the number of people who seek modified duties each year on the basis of some disability is extraordinarily high. In one bargaining unit, CUPW, which is comprised of our 48,000 operating employees, 10,000 employees worked modified duties in 2005. Canada Post is now accommodating more than 20% of the people who sort and deliver mail during a year. At this juncture, I'm going to use a rhetorical device used by former Premier Joey Smallwood when he wanted you to remember something: he repeated it. I want to underline a point. No, I want to double underline the point. No, I want to treble underline it. Most claims for lighter duties and/or compensation are legitimate. That's not the problem. That's not what this speech is about. What it is about is:
These are problems for all employers. They're especially serious for Canada Post. Modified duties among our CUPW employees are more than three times the industrial average. That's another treble I want to underline. Let me speak for a minute about Canada Post. We are a large, national $7 billion a year business. The Canada Post Group of Companies, which includes subsidiaries such as Purolator, has 71,000 employees. It is the 7th largest employer in the country. Our people work in 22 sorting plants, 1,500 letter carrier depots, 4,000 corporate retail outlets, and hundreds of other sites across the country. Our revenues last year thankfully were up 4.4%, because with costs climbing so uncomfortably, it is only increasing revenues that gave us our 11th straight year of profitability. In 2005, Canada Post's profit was $199 million. $160 million was paid out in dividends to our shareholder, the Government of Canada and we paid another $80 million in tax. Last year our people sorted and delivered 11 billion pieces of mail to 14 million mail boxes in all kinds of weather, in all kinds of geography. The days of the postal monopoly are, in effect, past. Our parcel business competes against some of the largest logistics players in the world. Our direct marketing mail business goes toe to toe everyday against large national companies like Bell telemarketing and all of Canada's media industry. The remaining lettermail monopoly is more illusion than reality. Direct substitutes such as fax, e-mail, electronic payments and bill presentment make the old exclusive privilege feel more like an exclusive obligation. We are like many of your companies - striving to stay competitive in the face of transformational challenges. One of the biggest challenges is to change attitudes in our workplace so that all of our people are engaged in the future success of the company, I have spent a lot of my time since joining Canada Post out in the field. Our 3,000 front line leaders tell me the same story. In every plant, on every shift across the company, they struggle to manage the high levels of absenteeism, the undocumented Illnesses and the need to find jobs for the growing numbers who say they cannot do the job they were hired to do. Let me put you for a minute in the shoes of our supervisors. In any given week, 7% of his or her people won't show up - they are off sick. 3% absenteeism is considered manageable. Our rate of absence is far higher than the industrial average. Too many of our people treat their sick leave as extra discretionary time that they can take, no questions asked. The reports and continuous documentation required to keep track of attendance is a legal requirement and a massive paper burden. It is very time consuming. Managing attendance is also a huge cost as relief workers must be found, and medical expertise hired to help us track down and get more precision from family doctors. The law requires that we determine whether absence is the result of a disability of some sort. At the top of every shift, every front line supervisor in Canada Post is now swamped in this paper work and the follow-up activity necessary to substantiate illness. The next thing on the agenda for the shift supervisor- is to go through the contortions to find tasks for the (average) 20% of the shift entitled to work light duties. If this is a problem for management, it's a greater burden for the people who come to work every day. This is partly the result of new developments in the law related to absenteeism. Not too long ago, failure to come to work was grounds for dismissal. The risk of losing one's job combined with a culture that supported a solid work ethic, made attendance management unnecessary. The law now says that you can dismiss someone only if absenteeism is excessive, and the prognosis for improvement in attendance is not great. It is only excessive if its - well - we're not sure anymore. Some arbitrators say if it is double the average. The average of what? The whole company? The plant? The attendance of the worst 25% of employees? If average absenteeism is already high, then what is excessive must be so by reference to that average! This must be flawed logic. It certainly leads to an impractical result. How does one figure out if the prognosis for attendance in the future is poor enough to support a dismissal? Some arbitrators have paid more attention to the small improvements in attendance that occur in the lead-up to the hearing, than the chronic problematic record during the years before the employer took steps to dismiss. If a human rights case can be made, that is to say, that the absence relates to some disability, it is virtually impossible to deal with a chronic absence. With the Meiorin and Désormeaux cases, one is tempted to ask whether an employee must come to work regularly to stay on the payroll. Regular attendance at work, surprisingly, may not be a bona fide
occupational requirement for some jobs. The recent case of Désormeaux
concerned a bus driver who was absent for 70 weeks over a 9year career.
That's 365 working days. Only 57 of those days related to the serious
headaches that were found to constitute a disability, protected under The Tribunal decided that while regular attendance was necessary for a bus driver, it was not as necessary for other jobs at OC Transpo. The employer was obliged to take the bus driver back and to put the driver in one of those jobs where frequent absence "did not have as much impact". I suspect OC Transpo was surprised to learn that it had any jobs for which regular attendance was not essential. Can we continue to accommodate in this way? If we can now, can we in the future when recent decisions will almost certainly lead to far greater numbers than we have today? The ever-expanding definition of disability is a-big problem, and it has arisen, not only under Human Rights law. The trend is the same under the various Workers Compensation laws. Here are a few examples: In Nova Scotia, Canada Post's costs for disability pensions went up by 263% in one year. Why? The Nova Scotia Workers Compensation Board decided to recognize "ongoing unattributed pain" as a disability. This is difficult to prove or disprove. This decision was made with no consultation as far as we can determine. In Ontario, the new trend is to accept a claim for workers compensation
as a preventative measure. That is to say, that the Board has declared
some of our people permanently partially disabled, not because of any
injury or incident at work, but because repetitive motion could in the
future aggravate a prior condition. We are appealing these preventive In Quebec, workers 'Compensation is payable for stress, even if the stress is only partially attributable to work. Our claims load is up significantly. Last year, we managed 5,200 workers compensation claims - a 10% increase over 2004. We are now challenging 28% of claims and winning about 40%. In the CUPW bargaining unit, we have 3,500 people who have been declared permanently partially disabled. This is 7.2% of operating employees - compared to industrial average of 1.5%. The duty to accommodate, under Human Rights laws, is becoming increasingly unmanageable. At Canada Post and in many other workplaces, a note from the family doctor is often the only trigger needed to set in motion a search for "light duties". When the duty to accommodate disabled people was first proposed, it seemed reasonable and manageable. We thought it would be a requirement that would arise infrequently. For us at Canada Post, with 10,000 people accommodated with light duties last year, it has become a huge managerial challenge. The law speaks about undue hardship but it seems that decision makers believe large employers have a limitless ability to accommodate. One case, or a few cases no problem; but 20% of operating employees, this gives rise to serious operational problems, growing inefficiencies and widespread malaise in the workplace. This is a hard way to have to run any business. I have been on our shop floors in Winnipeg, as I watched an evening supervisor prepare a matrix on a giant white board with the names of 15 people on his shift who could work only lighter duties. He carefully listed the various restrictions that applied to each of them, then drew up the varied tasks and the schedule of minutes during which they could perform them, For some, tasks could only be done for, limited time; for others, certain tasks could not be done at all. This was about 22% of the shift complement. The other people working on that same shift could not rotate between easier and harder tasks as is good practice, because of the 15 people occupied with only light duties. Now add the problem of people who did not show up at all. What you have is a small team of people getting the mail out at 72% of the shift complement. We are now routinely going back to family physicians with detailed questionnaires. We are asking more and more specialists to enter this lamentable picture. We must do so in an effort to understand our duty to accommodate. The array of disabilities, and the level of absence that is legally tolerable, and the duty to keep on accommodating - are not issues we can negotiate, even if unions were prepared to do so. These are matters of legal entitlement, as current jurisprudence has interpreted and applied Human Rights and Workers Compensation legislation. Low changes through a series of cases each building on one another, so that over time the law... or at least its practical consequences ... can change quite dramatically. Sometimes judges and others who adjudicate will sense the direction of change, understand that, however well intentioned, it is nonetheless unwise, and they will do a course correction. Another way to do this is through legislative reform. How we make a course correction, that is for others to decide. But it is time now to do so. My responsibility is to deal with consequences of such changes in the law and to point them out to others, including those who make the law. Dealing with those consequences is what our front line leaders do every day. Pointing out those consequences is what I have sought to do today. Thank you for your attention. |
