Is your job abandonment policy legal?

Have you ever had an employee fail to show up to work for an extended period of time, with no word or warning, and marked them off as a case of job abandonment?

Many employers have a job abandonment policy which states something along the lines of “after three consecutive, unauthorized absences an employee shall be considered to have abandoned their job”. There is a common misconception that this legal and correct.

In all actuality, the employer has a high threshold that they must meet in order to prove that the employee abandoned their job. A resignation must be clear and unequivocal.

What to do when an employee is not reporting for work:

1.      Keep trying

The employer must take reasonable steps to reach the employee to find out if they have intentions to return to work.  If the employee cannot be reached, you need to keep trying.  The more time that passes and the more attempts you make, the stronger your case for abandonment.

2.      Document everything

It is crucial that you maintain complete records documenting your attempts to contact the employee, including dates and times, copies of any correspondence, confirmation of receipts (e.g., read receipts for e-mails, proof of mail delivery, etc.) as well as any requests for information, accommodation, etc. 

3.      Request information

Employers have a right to information about the employee’s health status and accommodation needs as they relate to the job. If an employee is adamant that they cannot return to work due to illness, it is reasonable to request medical information. Employers do not have the right to know a diagnosis, but are entitled to know an expected return to work date, what accommodations may be required, etc. 

We recommend sending a job description, a cognitive and functional abilities form as well as any specific questions related to job restrictions or limitations. For example, if the job requires driving a vehicle, asking if the employee has any restrictions with respect to driving a vehicle is reasonable.

4.      Notify the absent employee of your requirements and provide deadlines

The employee must be notified that a failure to provide medical documentation or return to work by a specific date will be treated as a resignation. Be sure to follow up on the specified deadline.

5.      Update your policy

Instead of a specific job abandonment policy, it is best practice to implement an attendance policy. An attendance policy is proactive rather than reactive. An attendance policy establishes procedures for reporting absences, requesting time off, as well as informing employees about the consequences of unexcused or unreported absences. The goal is to minimize excessive absences and inevitably job abandonment. 

6.      Be consistent

Employers must apply their workplace rules consistently. If an organization has excused this same behavior in the past, then it would be viewed as condoning it. 

Terminating the employment relationship with an absent employee is not impossible, but it definitely puts an organization at risk. Anything less than an employee’s objective statements or actions showing an obvious desire to leave and not return will be construed against the employer.

In addition, there are Human Rights obligations in relation to accommodations that must be considered, and Employment Standards laws do not specify a time after which an absence becomes abandonment. Therefore, each situation must be handled very carefully and, on a case-by-case basis. 

Knowing what to do and doing your best to stay on top of extended, unexcused absences is an employer’s best chance at heading off job abandonment.

As always, Legacy Bowes is here to help. We encourage you to reach out to us with any questions.