Before you hit the garden read this so you can still move on Monday

Gardening is no longer just the domain of the "retired" or the British and Prince Charles' of the world! In fact there is a major boom of sorts in gardening. Go visit your local garden centre and on line garden "shops" to see just how much gardening has grown in North America.  The nice thing about gardening is it can be a form of exercise; you can do it all your life and it benefits both the body and mind.

Gardening can also present some ergonomic challenges as well in particular where awkward movements and postures are assumed and held for too long. The two most common of these are holding a bent and twisted posture at the spine and using kneeling postures.

Gardening should not hurt whereby you can barely walk the following day after the activity. Rather there should occur some muscle soreness much like after performing an exercise routine you have not performed in a few weeks. The prevention of muscle and joint soreness and even soft tissue injury is important as in all activities in order that you continue to enjoy and perform the activity.  Here are some Ergonomic and Physiotherapy tips to keep you in good shape this summer and fall;

Having the right tools is key to minimizing the energy required to garden and to remain injury-free. Do not get fooled by tool manufacturers who say their product is "ergonomic" however. Talk to a good service person at your local gardening centre to get proper advice as to what is a well made and well designed tool (hint; bent shovels and rakes are not ergonomic in design but merely a way of getting you to purchase the tool at a higher cost generally).

• To limit how much raking you have to do to clear up the left over leaves, rake leaves onto a tarp, when full, pull it to desired location.     
• Spend money on a good garden cart or wheelbarrow for moving tools, plants and soil and other garden materials.
• Kneeling is an inevitable part of gardening. Buy long handled tools to perform tasks in standing as much as possible. When kneeling kneel onto a soft pad (do not buy knee pads as the elastic which holds the pads up also impacts circulation at the backs of your knees). Avoid kneeling for long periods of time by breaking up tasks in smaller parts
• Use gloves to provide padding, thin gloves are preferred. Too much padding will reduce grip strength.
• Choose the proper tool for the task.
• Telescopic and pistol grip handles require less energy, a curved handle provides more leverage with less wrist stress.
• Keep tools sharp, a dull blade requires more effort and force.

Tips for staying comfortable while gardening:

• Start with the small tasks first...this gives you a warm-up before taking on heavier tasks
• Spread the work out over several days or weeks.
• All work should be done in the comfort zone (neutral postures) as close to the body as possible.
• Alternate tasks and positions, sitting and standing positions at 20 minute intervals, bending over for any length of time can become painful to the lower back and legs.
• Start slowly and take frequent breaks.
• Stay hydrated. Drink more that you think you need.

Stand up and stretch frequently... in the opposite direction to the posture you were just maintaining while gardening.

And the most important tip of all; enjoy the time outside and seeing the fruits (or veg or flowers)  of your labour.

Any questions? Give any of our Physiotherapists and Ergonomists a call or email as we can all assist you in keeping healthy and fit.

Info@OptimalPerformance.ca or @OPCPhysio.com

Disabled Employees can Forum Shop from WSIB to Human Rights, to Civil Suits to AODA; Be Prepared

OPC's AODA Experts strongly recommend our clients and readers review this excellent article by 2 of the Labour Lawyers with Stringer LLP.

www.stringerllp.com/uploads/ckeditor/attachment_files/49/Forum Shopping a Growing Problem - Lawyers Weekly 2 March 2012 - JDS JNY.pdf

In case your HR, IT, Purchasing, Facility Management, Diversity Managers and Senior leaders think the AODA is not an issue to deal with or be cognizant of please read this article. The liabilities are real and this includes audits of workplaces by the Directorate which commenced January  of 2012.


And remember apart from each of these legal forums who will hear cases regarding lack of accommodation for disability there is also your company's well developed corporate image and customer trust at risk by not undertaking all of the steps and processes required by AODA law.

We can help you sort through all of this at OPC as we have one of Canada's top experts working with clients in Canada and the U.S.  To arrange a meeting with Olga Dosis and Jane Sleeth of OPC Inc please contact us at AODA@OptimalPerformance.ca or 416 860-0002


Accessibility and Universal Design represent huge and tangible ROI's for your company.  When we meet with you we can show you how to optimize these returns.


JESleeth OPC Inc
Olga Dosis OPC Inc

How the Heck do we get GP's to Follow Evidence Based Guidelines for Lower Back Pain?

As part of my on-going review of the literature which is then used in the case management part of the OPC-DM part of our practice as well as used in the updating of the Carswell Publications Return to Work Compliance Toolkit and the Lower Back and Neck Pain books I come across scientific articles which I think will be of interest to our clients and readers.
This is an important article and study amongst many which still find to this day that General Practitioners in particular, and those with the most experience do not use the Evidence Based Guidelines published extensively for the treatment and management of low back and sciatica.
Could this be the reason why outcomes for treatment of low back pain are so dismal at best and why return to work rates following low back pain and sciatica are so poor in Canadian workplaces?
Have a read and let me know if you think employers need to impact health care standards in Canada.
Should the Canadian Public and employers start to question GP's more about their standards of care and outcomes?
Jane Sleeth Physiotherapist optimalperformance.ca and Author Carswell.com

From the Journal of Gen Intern Med. 2005 December; 20(12): 1132–1135. doi: 10.1111/j.1525-1497.2005.0230.x

PMCID: PMC1490268

Copyright 2005 by the Society of General Internal Medicine

Physicians' Initial Management of Acute Low Back Pain Versus Evidence-Based Guidelines Influence of Sciatica

Barbara S Webster, BSPT, PA-C,¹ Theodore K Courtney, MS, CSP,^2,4 Yueng-Hsiang Huang, PhD,³ Simon Matz, MS,² and David C Christiani, MD, MPH, MS⁴

¹Center for Disability Research, Liberty Mutual Research Institute for Safety, Hopkinton, MA, USA

⁴Department of Environmental Health, Occupational Health Program, Harvard School of Public Health, Boston, MA, USA.

The Liberty Mutual Research Institute for Safety is owned and operated by the Liberty Mutual Insurance Company. The Institute conducts original scientific investigations into the causes and prevention of job-related injuries and disability. All research is published in peer-reviewed journals in science, engineering, or medicine.

Background

Little information is available on physician characteristics and patient presentations that may influence compliance with evidence-based guidelines for acute low back pain.

Objective

To assess whether physicians' management decisions are consistent with the Agency for Health Research Quality's guideline and whether responses varied with the presentation of sciatica or by physician characteristics.

Design

Cross-sectional study using a mailed survey.

Participants

Participants were randomly selected from internal medicine, family practice, general practice, emergency medicine, and occupational medicine specialties.

Measurements

A questionnaire asked for recommendations for 2 case scenarios, representing patients without and with sciatica, respectively.

Results

Seven hundred and twenty surveys were completed (response rate=25%). In cases 1 (without sciatica) and 2 (with sciatica), 26.9% and 4.3% of physicians fully complied with the guideline, respectively. For each year in practice, the odds of guideline noncompliance increased 1.03 times for case 1. With occupational medicine as the referent specialty, general practice had the greatest odds of noncompliance (3.60, 95%) in case 1, followed by internal medicine and emergency medicine. Results for case 2 reflected the influence of sciatica with internal medicine having substantially higher odds (vs case 1) and the greatest odds of noncompliance of any specialty (6.93, 95%) followed by family practice and emergency medicine.

Conclusions

A majority of primary care physicians continue to be non compliant with evidence-based back pain guidelines. Sciatica dramatically influenced clinical decision-making, increasing the extent of noncompliance, particularly for internal medicine and family practice. Physicians' misunderstanding of sciatica's natural history and belief that more intensive initial management is indicated may be factors underlying the observed influence of sciatica.

Keywords: back pain, guidelines, practice variation, clinical vignette, decision making

Low back pain affects up to 80% of the working population during their lifetime and is the second most common reason for physician visits ¹ and for work disability.² Back pain accounts for an estimated $25 billion in annual medical costs in the United States.³

Factors related to the extensive burden of back pain may include variations in physicians' clinical management as the etiology of back pain is unclear.^1,4 Clinical practice guidelines have been systematically developed to improve health care quality and reduce ineffective treatments. A number of evidence-based guidelines for the clinical management of acute back pain in primary care have been published since the first in 1987,⁵ including the Agency for Healthcare Research and Quality (AHRQ, previously named the Agency for Health Care Policy and Research) guideline in 1994.⁶ More recent guidelines are based on newer evidence but have similar diagnostic and therapeutic recommendations to the AHRQ guideline.⁷

All guidelines recommend an initial evaluation to identify the approximately 5% of patients who present with “red flags.” Red flags are those findings that suggest significant pathology (i.e., vertebral fracture, tumor, infection, cauda equina syndrome, or serious nonspinal conditions) that require diagnostic studies and/or specialty referral as part of initial management.⁶

After ruling out such serious conditions, cases are categorized as nonspecific back pain or sciatica (approximately 85% and 5% of cases, respectively). Disabling symptoms are expected to resolve in up to 90% of patients within the first month, including over 50% of those with sciatica.⁸ The guideline intent is to change the care focus for both categories of back pain from pain relief to improved activity tolerance, and to limit unnecessary diagnostic and clinical treatment interventions during this period.⁶

Despite the proliferation of evidence-based back pain guidelines, prior studies, based on chart reviews or physician surveys, found a lack of consensus and compliance with them.^9–13 However, these studies were based either on a small sample size, a single specialty group, or were completed more than a decade ago. This study's purpose was to assess the extent to which the clinical decision-making in a more recent, national sample of primary care physicians was consistent with the guideline, and whether responses varied with the presentation of sciatica or by physician characteristics.⁶

METHODS

Questionnaire Development

A 2-page questionnaire was developed to assess physicians' clinical approach to 2 case scenarios of back pain. Scenarios were designed to represent different diagnoses: case 1 representing nonspecific back pain and case 2 representing sciatica with neurological findings. However, neither case presented with “red flags;” therefore, during the first month of care, the guideline recommendations for both require only minimal clinical intervention, and neither requires diagnostic testing. Physicians were asked to indicate the diagnostic and treatment modalities they would order for initial management of each case and whether they would consider specialty or surgical referral. Demographic information (age, gender, years in practice, and frequency treating back pain patients) was also requested.

DISCUSSION

Surveyed physicians departed from the AHRQ guideline to some extent for the case with nonspecific back pain. However, those in general practice and internal medicine and, to a lesser extent, those in emergency medicine, were significantly more likely to choose at least 1 non evidence-based intervention for patients without sciatica.

In case 2, sciatica dramatically influenced clinical decision-making with almost all physicians selecting at least 1 non evidence-based intervention. Increases in noncompliance within internal medicine and family practice were particularly substantial. Between-specialty differences were also pronounced, even when controlling for years in practice and gender. While a diagnosis of sciatica might suggest more intensive clinical intervention, the guidelines for the first month still recommend conservative interventions to allow time for symptom resolution (which occurs in over 50% of patients with sciatica) and for the patient to overcome activity limitations. More intensive management approaches may inhibit activity restoration and have been shown to prolong disability.

The significance of years in practice in noncompliance is consistent with the results of a recent systematic review of empirical studies. More-experienced physicians were found to demonstrate less knowledge, be less likely to follow standards of practice, and have less successful outcomes.

CONCLUSIONS

More than a decade after promulgation of evidence-based guidelines for low back pain, a majority of primary care physicians continued to be non compliant. Sciatica dramatically influenced clinical decision-making, increasing the extent of noncompliance, particularly for internal medicine and family practice. More-experienced physicians were less compliant than their colleagues, irrespective of diagnosis.

Reasons suggested for not following practice guidelines include lack of awareness, familiarity, self-efficacy, or outcome expectancy, and inertia of previous practice or external barriers.

The Sinking of the Titanic was not Simply Human Error

As the Anniversary of this accident and resulting disaster approaches (1912) this is a good time to consider the fact that the accident itself as in all accidents stems from both poor design; an initial unforeseen incident (in this case there was an unprecedented block of ice which broke free from the Northern Ice fields and an unusually high tide which lifted the iceberg from its anchored position) and then a chain of human error resulting from both design flaws (technology too complex relative to the human training & experience). There is NEVER one person to blame and always many factors that occur all at the same time. The most important thing is for engineers, designers, ergonomic experts to perform a root cause analysis, learn and then apply to future design, training and testing. Titanic was a good teaching opportunity with a huge loss of life. 

Here is an excerpt from the UK's Telegraph (who interviewed the grand daughter of the senior most officer who survived the sinking, Louise Patten) which not only gives us a different take but also shows how the public and even Inquiries too often try to blame one "fall guy" for the disasters which occur at our peril. To overlook the correct method which is a thorough Root Cause Analysis (this is taught very early on in University Level Ergonomic courses) and not patiently review all of the data prevents us all from really learning from an accident or even an near miss so as to lower the chances of a similar accident from occurring. The other critical part of the story is something only now being applied in some hospitals in Canada relative to patient death's following a string of errors; fellow employees will often not come clean about accidents which occur as they fear the loss of theirs and their fellow employees jobs, and Senior Managers try to cover up the truth so as to limit financial and reputational liabilities. This is in large measure why mistakes and accidents keep repeating themselves in the workplace.

Excerpt from the UK Telegraph Week of April 9th 2012

"But can there really be anything new to say, almost 100 years on, about the Titanic? 'My grandfather was the Second Officer on the Titanic,’ Patten explains. 'He was in his cabin when it struck the iceberg. Afterwards, he refused a direct order to go in a lifeboat, but by a fluke he was saved.’

Astonishingly, he jumped into the ocean as the boat sank, was being sucked down into the depths - but was then carried back to the surface by the force of an explosion beneath the waves and was rescued by a passing lifeboat.

Related Articles which reveal our propensity to blame one or two causes and the human factor instead of design, poor training, lack of time to allow experts to be developed

• 'Titanic sunk by steering blunder'
  21 Sep 2010

• 30 seconds that sank the Titanic
  04 Dec 2011

As the senior surviving officer, he was asked at both official inquiries into the sinking [by the US Senate and the British Board of Trade] whether he had had any conversation after the collision with the Captain or the First Officer, William Murdoch, who had been in charge at the time. In other words, did he know exactly what had happened? And both times he said no. But he was lying.’
What then did he know that he wasn’t telling? 'After the collision,’ Patten goes on, 'my grandfather went down with the Captain and Murdoch to Murdoch’s cabin to get the firearms in case there were riots when loading the lifeboats. That is when they told him what had happened. Instead of steering Titanic safely round to the left of the iceberg, once it had been spotted dead ahead, the steersman, Robert Hitchins, had panicked and turned it the wrong way.’
At first glance it sounds extraordinary that anyone – much less the man put in charge of the wheel on the maiden voyage of what was then the world’s most expensive ocean liner – could have made such a schoolboy error. But, Patten explains, there was a very particular technical reason for this otherwise incredible error.
'Titanic was launched at a time when the world was moving from sailing ships to steam ships. My grandfather, like the other senior officers on Titanic, had started out on sailing ships. And on sailing ships, they steered by what is known as “Tiller Orders” which means that if you want to go one way, you push the tiller the other way. [So if you want to go left, you push right.] It sounds counter-intuitive now, but that is what Tiller Orders were. Whereas with “Rudder Orders’ which is what steam ships used, it is like driving a car. You steer the way you want to go. It gets more confusing because, even though Titanic was a steam ship, at that time on the North Atlantic they were still using Tiller Orders. Therefore Murdoch gave the command in Tiller Orders but Hitchins, in a panic, reverted to the Rudder Orders he had been trained in. They only had four minutes to change course and by the time Murdoch spotted Hitchins’ mistake and then tried to rectify it, it was too late.’

This pictograph reveals how the steering using Rudder Orders is the opposite to the steering of Tiller Orders. This coupled with a lack of training and experience with the running of the Titanic leads to errors and this case the "perfect storm". Lesson learned? Never be the first to use new technology!
A second and potentially even more damning secret; if the steersman Hitchins had made a human error, Bruce Ismay, chairman of the White Star Line, owners of the Titanic, and another survivor of the sinking, gave a lethal order.
'Titanic had hit the iceberg at her most vulnerable point,’ explains Patten, 'but she could probably have gone on floating for a long time. But Ismay went up on the bridge and didn’t want his massive investment to sit in the middle of the Atlantic either sinking slowly, or being tugged in to port. Not great publicity! So he told the Captain to go Slow Ahead. Titanic was meant to be unsinkable.’

'If Titanic had stood still, she would have survived at least until the rescue ship came and no one need have died, but when they drove her 'Slow Ahead’, the pressure of the sea coming through her damaged hull forced the water over the bulkheads and flooded sequentially one watertight compartment after another – and that was why she sank so fast.’
Why would Patten’s grandfather, a thoroughly honest and brave man, have lied and carried on lying? 'Because,’ she explains, 'when he was on the rescue ship, Bruce Ismay pointed out to my grandfather that if he told the truth, the White Star Line would be judged negligent and its limited liability insurance would be invalid. Ismay pretty much said that the whole company would go bust and everyone would lose their jobs. There was a code of honour among men like my grandfather in those days. So he lied to protect others’ jobs.’

So there this secret sat, locked in a family circle from which Patten is now the only survivor. 

After all those years of silence, could it really have been that straightforward? 'Well, not really. This sounds mad, I know, but once I started thinking about it, I felt as if I owed it to the world to share the secret. If I died tomorrow and then it would die with me.’
Good as Gold by Louise Patten (Quercus Publishing Plc) Telegraph Books books.telegraph.co.uk "

Bill 160 OHSA Amendments Coming in Force April 2012

Bill 160 OHSA Amendments Coming Into Force In Ontario

The Ontario government has proclaimed that effective April 1, 2012, certain amendments to the Occupational Health and Safety Act (the “Act”) outlined in Bill 160, the Occupational Health and Safety Statute Law Amendment Act, 2011, will come into force. These include:

§ amendments to s. 50 of the Act that allow an inspector to refer a matter to the Labour Board where the circumstances warrant, and if conditions are met (s. 13, “Referral by inspector”); and

§ amendments to s. 50.1 of the Act setting out the functions of the Office of the Worker Advisor and the Office of the Employer Adviser (s. 14), and compellability of persons employed by same (s. 16).

The government has also filed O. Reg. 33/12 prescribing the specific functions of the Offices of the Worker and Employer Advisers for the purposes of Part VI (Reprisals by Employer Prohibited) of the Act. The regulation, which comes into effect April 1, 2012, provides as follows:

§ the functions of the Office of the Worker Adviser are to educate, advise and represent non-unionized workers in proceedings before the Board; and

§ the functions of the Office of the Employer Adviser are to educate, advise and represent employers that have fewer than 50 employees in proceedings before the Board.

Unless proclaimed earlier, other Bill 160 amendments are expected to come into force on April 1, 2012, including:

§ section 4.1, setting out the Powers of the Minister to administer the Act; and

§ “Designated Entities” provisions under Part II.1 of the Act (Prevention Council, Chief Prevention Officer and Designated Entities).

As previously reported, Bill 160 received Royal Assent on June 1, 2011. More information about Bill 160 is available in our earlier Blogs in 2011 & 2012 and can also be accessed in the Ministry of Labour Website.

Disability Management & Absenteeism Management are Intertwined

Absenteeism Controls are Intertwined with Disability Management

In the workplace there are two types of absence, each of which requires a different type of approach on the part of the Human Resources Manager who has been assigned this area of specialty and responsibility.

1. Innocent Absenteeism

Innocent absenteeism refers to employees who are absent from the workplace for reasons which are beyond their control such as illness or injury. Innocent absence is also referred to as non-culpable absence.

In workplaces where Collective Agreements are in place Non-culpable absences cannot be remedied or follow the organizations’ disciplinary measures & processes in place for Culpable absence.

2. Culpable Absenteeism

Culpable absenteeism on the other hand refers to employees who are absent without authorization on the part of their manager or supervisor and the absence(s) occur for reasons within the employee’s control.

This might include an employee who uses sick leave time even though they do not have a bona fide illness or injury.  Culpability means the employee is blameworthy & therefore progressive discipline can and should occur once performance management steps have been followed & documented on the part of the manager.

As most Human Resources Managers and Case Managers know, many employees in the organization will be absent from the workplace for legitimate & therefore innocent reasons and these absences occur infrequently.  Your organization most likely has in place procedures for disciplinary action which only applies to culpable absence from work. The most common approach taken in Canadian workplaces involves the process of individual absence counselling & closer supervision whereby most employees overcome their problems and return to the accepted & stated level of regular attendance.

Developing the Threshold for Excessive Absenteeism

One of the first steps your Human Resources Director or Manager should take when developing or upgrading the Disability Management program is to review the entire attendance management and performance management process.  Trends, patterns, aggregate benefits & medical use data should be reviewed to determine the pattern and acceptable thresholds for the organization. Absence trend analysis for your industry should also be discussed and shared with your industry association.

Once this background work is complete absence numbers and thresholds should be determined; published and made known to each employee and their manager.

The HR personnel assigned to the Attendance or Absence Management program should be regularly reviewing trends with the managers and supervisors as compared to the organization norms & numbers.  This same data can also allow comparison of employees within the same department and across departments. These numbers & trends need to be measured against the backdrop of seasonality & context (increased number of days lost due to allergy season, flu season, weather patterns, changes in HR policy allowing for more time to work from home, downturn in economics & business performance etc).

If the indicators show that an employee is excessively absent, the next step is to gather as information to get a clearer picture of the situation. The employees' files should be reviewed and the employee’ supervisor/manager should document all available information on the particular employee's history, performance related changes and context as outlined above.

Communication & Meeting with the Employee

After careful collection of the information & absence data the supervisor (and the HR Absence Specialist) should meet with the employee identified as having higher than average or questionable patterns of absence.

The purpose of this initial meeting is simply to let the employee know there are concerns about the attendance record & to bring this to the employee's attention.  This meeting also allows for discussion about the causes for the attendance problem & the steps the employee can take to remedy the absences.  This initial meeting should be documented while also ensuring the supervisor/manager really hears the employee’s feedback which leads to an understanding of how they propose to improve their attendance and/or performance. This initial meeting should be positive in tone and be focused on how the organization takes attendance seriously and how the lack of attendance in the workplace on the part of the employee impacts their fellow employees and the quality of work being completed.

Having the supervisor/manager review a print out of the patterns & rates of absence and a reminder of the organization’s written thresholds provide a good visual highlight & method of keeping the discussion on track.  

This initial meeting can also allow the supervisor/manager to explore in depth with the employee the reasons for their absence as well as to provide support & supervision at that time.  The supervisor/manager can offer access to the EAP program of counselling where indicated during this meeting.

Most often following these meetings the employee reduces their absence from the workplace. These meetings when handled properly remind the employee their team and manager are concerned about their absence and want to see this improve.

In going forward the employee's attendance should be closely monitored until it has been reduced to acceptable levels (as per the written threshold for your organization).  On-going supervision & counselling should take place for the employee & of course if marked improvement occurs this should be conveyed to the employee. All meetings are documented and the employee should know these are kept in their files.

What if absence stems from illness or injury?

As the Absence management process moves along it may be necessary at some point for the supervisor/manager to determine the reasons for high levels of innocent or culpable absenteeism. This includes verifying the nature and reasons for the absence.

The content and nature of these meetings can be can be delicate in nature given the employee’s right to privacy balanced with the employer's need for information which is affecting workplace morale and productivity. When and if medical information is being discussed at this point this can quickly become a source for conflict & defensiveness.

If your organization is unionized it will be important for collective agreement language to allow for some inquiry on the part of the supervisor/manager to better understand the bona fide reason for absence from work.


Generally speaking jurisprudence across Canada reveals and recommends the following occur as part of the Absence Management and Disability Management programs:

1. There is an on-going right to privacy on the part of an employee unless the employer can demonstrate its legitimate business interests necessitate some intrusion into the employee's personal information
2. When such intrusion is justified it should be limited to the degree of intrusion necessitated by the employer's interests.
3. An employee has a duty to notify the employer of an intended absence, the cause of the absence and its expected duration. This information is required by the employer to meet its ability to schedule work and organize its operations
4. An absent employee has an obligation to provide his employer with information regarding any change to their condition or circumstances relating to it which may affect the employer's requirement to schedule work and organize its day to day operations. As such, the interests of the employer in having this specific information outweigh the individual employee's right to privacy.
5. Commonly used employer Policies requiring proof for every absence is unreasonable where an issue of absenteeism does not exist.
6. The obligation to prove sickness, where the employer requires proof, rests with the employee & their Physician
7. The employer in order to ensure it has the appropriate types & levels of medical/functional information should use form templates with specific questions of the Physician, Physiotherapist, Psychologist including; reasons why absence from work are required.
8. It is critical for organizations to have in place policies which clearly state that lack of receipt of the form could result in loss of pay until the form is received and completed fully.
9. To ensure the template forms are completed appropriately the organization should ensure all employees know when to acquire the forms; where to acquire the forms from; how to instruct the treating practitioner on the importance of the form; and how to invoice the employer upon completion of the form.
10. An employer may require an employee to prove “fitness for work” where it has reasonable grounds to do so.
11. Where unusual circumstances raise reasonable suspicion that an employee might have committed an abuse of an income protection program or the absence management program, the organization can require the employee to explain such circumstances.

As per good employment practice any intrusion into the employee's privacy must be shown to be reasonable, based on the individual circumstances and in relation to the operation of the employer's business.

Following Initial meeting if Attendance does not improve;

If after the initial interview & follow up supervision & counselling & if over time the employee’s absenteeism has not improved, it may be necessary to take further action. Further actions not occur until the supervisor/manager has met with Human Resources to ensure an appropriate approach & timing occurs for subsequent meetings and to ensure all policies and procedures are followed closely.

Determining whether counselling versus disciplinary action is appropriate, depends on whether the employee's absences are innocent or culpable. If the employee's absenteeism results from both innocent and culpable absences, then each type must be dealt with as a separate issue but can and should be dealt with at the same time.

Supervision for Innocent Absenteeism

Innocent absenteeism is not blameworthy and therefore disciplinary action is not justified. Absenteeism, no matter what the cause, imposes losses on the employer who is also not at fault. The damage incurred by the employer is always weighed against the employee's right to be sick. There is a point at which the employer's right to expect the employee to attend work regularly and fulfil the employment contract will outweigh the employee's right to be sick. At such a point the termination of the employee may be justified, as per the legal term & policy “Frustration of Contract”.  Any movement in this direction on the part of the Manager and Human Resources should only occur following discussions with the organization’s labour lawyers.

The procedure an employer may take for innocent absenteeism is as follows:

1. Initial meetings, supervisor and counseling
2. Written counseling along with meetings
3. Reduction(s) of hours and/or job reclassification
4. Discharge from employment based on Frustration of Contract

On-going meetings and supervision/counselling
The steps outlined in this section and in all sections of this book presume the Human Resources & DM departments or managers have clearly communicated attendance & DM expectations to all employees and that these procedures are in writing (the requirement to put these procedures into writing has increased for the Province of Ontario under the Integrated Accessibility Standards (IAS) for the AODA).

Once all of these procedures have been conveyed and in knowing there is an employee who has been identified as having attendance issues the supervisor/manager will meet with the employee. Follow up meetings and reviews of attendance will occur to monitor the effect of these efforts on attendance/performance.

If the absences are intermittent, the supervisor/manager should meet with the employee each time they return to work. If absence is longer, the supervisor/manager should keep in touch with the employee regularly and stay updated on the status of their condition & indicate a willingness to assist the employee.

The employee may be required to have the Absence from Work Form completed by the Physician and/or Physiotherapist (functional expert) and/or Psychologist to determine the likelihood of the employee being able to attend regularly at work in the near future. Regular review of these Forms will provide the supervisor/manager with the steps the employee is taking to seek medical & rehabilitative treatment and other assistance. Formal meetings may require additional verbal warnings which will be well documented. If no improvement in attendance occurs, written warnings are then provided.

Written Counselling
If the absences persist the supervisor/manager will meet with the employee formally and provide them with a “letter of concern”. If the absenteeism still continues to persist then the employee should be given a second “letter of concern” during another formal meeting.

Each subsequent letter is more clearly and strongly worded including warning the employee that unless attendance improves, termination may be necessary.


Reduction(s) of hours and or job reclassification
In between the first and second letters the employee may be given the option to reduce their hours to better fit the personal circumstances. This option must be voluntarily accepted by the employee and cannot be offered as an ultimatum, as a reduction in hours is a reduction in pay and therefore can be looked upon as discipline.

If the nature of the illness or injury is such that the employee is unable to fulfil the requirements of their job demands, but could benefit from modified work, counsel the employee to bid on jobs of such type if they become available. The onus should be on the employee to apply for an existing position within his/her capabilities.

Discharge from Duties due to Frustration of Contract non Culpable
Only when all the previously noted needs and conditions have been met and everything has been done to accommodate the employee can termination be considered. An Arbitrator would consider the following in ruling on an innocent absenteeism dismissal case.

1. Has the employee done everything possible to regain their health and return to work?
2. Has the employer provided every assistance possible? (i.e. counseling, support, time off.)
3. Has the employer informed the employee of the unworkable situation resulting from their sickness?
4. Has the employer attempted to accommodate the employee by offering a more suitable position (if available) or a reduction of hours?
5. Has enough time elapsed to allow for every possible chance of recovery?
6. Has the employer treated the employee prejudicially in any way?

As is evident, a great deal of time and effort must elapse before dismissal can take place.

These points would be used to substantiate or disprove the following two fold test.

1. The absences must be shown to be clearly excessive.
2. It must be proven that the employee will be unable to attend work on a regular basis in the future.

Corrective Action for Culpable Absenteeism

As already indicated, culpable absenteeism consists of absences where it can be demonstrated that the employee is not actually ill and is able to improve his/her attendance.

Presuming you have communicated attendance expectations generally, have identified the employee as a problem, have met with him/her as part of your attendance program, made your concerns on his specific absenteeism known and have offered counselling as appropriate, with no improvement despite your positive efforts, disciplinary procedures may be appropriate.

The procedures for corrective/progressive discipline for culpable absenteeism are generally the same as for other progressive discipline approaches for performance related issues. The discipline should not be prejudicial towards the employee. The generally accepted procedure which we advocate is as follows: [Using counselling memorandum & form letters and while keeping Human Resources apprised of this situation]

1. Initial Warning(s)
2. Written Warning(s)
3. Suspension(s)
4. Discharge

Verbal Warning
Supervisor/manager meets with the employee on a more formal basis. Explain how sick days, STD and LTD (including WCB) income protection is to be used only when there is a legitimate impairment (illness or injury with accompanying disability preventing Stay at Work). Advise the employee that their attendance record must improve to the pre-determined and well communicated level for your organization. Inform the employee this level of attendance must be maintained at this level or further disciplinary action will result. Offer EAP counselling & supervisory guidance as appropriate.

Proceed to give further verbal warnings in formal meeting formats as required.

Review the employee's use of sick days, STD and/or WCB income protection records at regular intervals. Also look at lateness, leaving early, patterns of absence and even presenteeism. Where a marked improvement occurs, commend the employee. Where there is no improvement and even a worsening pattern, issue a written warning.


Meeting and Written Warning
Set up a meeting with the employee again. Review the statistics, trends, feedback & the organization’s absence policy and standards. Highlight how there has been no noticeable (or sufficient) improvement in attendance in the workplace.

Let the employee speak to determine if there is a valid reason for this lack of change and offer assistance of an EAP and supervisor nature. If a satisfactory explanation is not provided, advise the employee they will be given a written warning. Be specific during the discussion & in the counselling letter about the type of action to be taken and when it will take place if the record does not improve. Let the employee know the written warning letter will be placed into their file which will include notes about the statistics and patterns noted since the last meeting.

If the amount & pattern of absence continues to exceed the organization’s written limits & policy the next step includes progressive discipline where a second, stronger written warning is issued as part of a formal meeting. Most labour lawyers in Canada recommend this second written warning be used as an alternative to proceeding to a higher level of discipline such as suspension in order to ensure a conservative approach is used at all times.  Consideration should also be given to factors such as the severity of the problem, the credibility of the employee's explanations, the employee's general work performance and length of service.

Suspension is an option only after the supervisor/manager has conferred with Human Resources, Sr Managers and your organizations labour law specialist.
If the problem of culpable absenteeism persists despite the meetings & warning letters, another meeting should occur immediately following an absence.  The meeting will follow the same course as the above outlined meetings with the addition of advising the employee they are being suspended. The length of the suspension will depend on the severity & patterns of absence; objective work performance measures, the credibility of the employee's explanations, other measures regarding presenteeism, attempts to correct the issues thru working with EAP councillors, & length of service.

Following a return from the suspension if the absence issues continue further suspensions of increasing length of time can and should be used (Labour Lawyers are cautious about the disciplinary process.  The use of Last Chance Agreements is also recommended to be used.  The Disciplinary process is a long process temporally and requires a good deal of time, effort, note writing. However given that these steps may lead to the eventual loss of an employee’s job an abundance of caution should prevail.

Dismissal; this occurs following all of the form steps listed above and after consultation with Senior HR Managers and the organization’s labour lawyers. This also follows the use of written Last Chance Agreements.
Dismissals should only be considered when all of the above conditions and procedures have been met & if/when the employee continues over time to show no satisfactory improvement in attendance. At this point in time the employee is dismissed on the grounds of their unwillingness to correct their absence record.

Performance Reviews, Progressive Discipline & the “sudden” change in Health Status; Current Canadian Employer Dilemma

A growing trend we see in our practice and learn about from employers whom we interview occurs when an employee attends a Performance Review which is not what they expected; or commence a Progressive Disciplinary process; or have a negative encounter with their co-worker or supervisor followed by a call to the workplace on the part of that employee stating they have gone to see their Physician and are to be off work indefinitely. This trend expands further in the sense that the number one reason for this absence is stated to be due to “stress” or depression or anxiety “caused” by the workplace.

These types of reasons provided by the employee and their physicians for lost time from the workplace have a significant & often silent impact on workplace morale, is incredibly expensive for Canadian businesses & rarely serves the best interests of the employee themselves.

The frustration we learn about in our surveys and through direct contact with clients are around the growing concern about how sick-days and short term disability benefits are being unfairly exploited by some poorly performing employees who use a medical reason for their subsequent absence from work.


Employers we work with and speak with at conference across Canada seem to tell similar if the not the same stories;

a.    an underperforming employee is requested to set up a meeting by their supervisor about their performance. The meeting is set up for the next day but on that day a message is left by the employee saying they are sick & they have sent along a doctor’s note to the workplace

b.    an employee has trouble getting along with the new manager who has new and more stringent expectations for all of the employees. Monday morning the new manager receives notice from human resources that a note has been received from the employee’s doctor saying she is sick and cannot attend work for 6 weeks

c.    An employee applies for a promotion. The employee is bypassed by another employee whom the original employee feels was less qualified and had fewer years of service. The day after being bypassed for the promotion this employee’s son drops off a note from the employee’s doctor to the workplace stating the employee is “suffering from stress and requires an unknown period of time away from the workplace”.

Deciphering Doctors Notes in particular for “stress leave”.

Employers in Canada have limited ability to question the legitimacy of a note from the general practitioner once these notes are received and accepted by the workplace (see Chapter on non-acceptance of physician’s notes and use of template forms only with signed employee consent). At the same time Canadian workplaces cannot discriminate against an employee with a legitimate disability or dismiss a disabled employee or adversely affect their terms of employment because they are disabled. This protection follows from each of the WCB Acts in each province and territory, Provincial Human Rights Laws & Statutes and now, the AODA Act in the Province of Ontario.

At the end of the day each employer must accommodate a disabled employee by accommodating the workplace; creating modified work; or providing leave so the employee can recover from or manage their disability.

On the other hand an employee is not protected when their “stress” (remember in using the appropriate Physician Forms the word “stress” does not have to be accepted as a diagnosis is therefore not a reason to avoid the workplace) relates to their personal feelings about the new manager they work with; their poor performance or their being bypassed for a promotion. If the “stress’ turns out to be a symptom of a bona fide medical diagnosis such as depression and anxiety then the employee will be protected  from any progressive discipline during that time period. (recall chapter about Healing Timelines which applies to depression and anxiety with expected return to work dates.  Depression and anxiety unless serious in nature should not preclude any employee from resuming all activities of daily living including work after a 1 to 6 week time period).


If your organization wants to progress your program toward good Disability Management however it will be critical for the DM or Return to Work specialist within your organization or within the consulting company hired to work with your HR team to determine the nature of the diagnosis (if a diagnosis exists).  Employers have the right to request information about the prognosis for recovery;  the length of time needed for rehabilitation & recovery; whether the employee will be using medication that may impact a safety sensitive position; whether there will be any requirement for a graduated return to work & specifically what functional impacts the impairment may have on the employee’s abilities.

In some circumstances your organization should consider sending the employee to a Psychiatrist and/or Psychologist in the cases where the GP or Family Physician are not able to expedite a review by a specialist for the employee. (A review by the Specialist is not an IME which we strongly recommend not be used except in extreme cases where the employee’s physician has been proven to be overstating or understating the employees’ actual impairment and level of disability and where the safety of the employee, co-workers or the public is at risk).


Remember Privacy Law does not permit your organization to ask the for the employee’s diagnosis. However the Case Manager who works independently for your organization or with your insurance provider can request this information provided there is signed consent by the employee.

Having this information is critical for 3 reasons;

1.    To determine if an employee qualifies for sick leave and STD

2.    To determine if the employer can proceed with disciplinary action

3.    To determine when, how and where the return to work can commence and if modification of the job demands should occur and to what extent

Limiting sick-leave benefits

Another approach is to limit an employee’s entitlement to sick-leave & STD benefits based on the evidence provided by the claims manager and case manager. This is based on the fact that an employee is less inclined to take time off work in the case of a mild level of injury or illness if this time is not paid for.  Your organization can and should require additional medical information to verify the nature of the absence request an employee may make particularly as it relates to “stress leave”.  As outlined later in this book your organization should require that, as a condition to receiving benefits the appropriate practitioner completes the correct form which objectively proves impairment is present and it disables the employee from commencing the return to work process. These steps are of course based on the fact these policies and procedures are in place prior to the employee making the request for sick-leave & STD benefits and should be applied equally to all employees. 



A point to be remembered by organizations and in particular managers and supervisors who attempt to correct work performance; improve attendance; or work with employees who are struggling to learn to work with new managers, is the employee may take time from work when there is a legitimate illness or injury in place. The ability to carry on discipline, the performance review or not promote the employee will be restricted during the time in which the employee is away from the workplace.  These plans however are simply delayed during this time period and should never be “shelved”.  As soon as the employee returns to work or commences the return to work process the supervisor/manager can recommence the disciplinary process; attendance and performance management processes; or provide the long-awaited performance appraisal. Discipline or an appraisal may be delayed by the DM process temporarily but it should never be denied.