How do you avoid discrimination when implementing your absenteeism policy?

Getting absenteeism right is more important today and at the same time more complex than ever. Especially as the labour courts are increasingly being presented with health-based discrimination cases. The key: a broad, clear, and well-communicated absenteeism policy. Bart Teuwen, absenteeism expert at Mensura, and Steven Renette, employment lawyer at Mploy, highlight the main legal pitfalls and practical solutions.

"The number of discrimination cases in employment law is firmly on the rise," Steven begins. "Of the 760 Belgian discrimination cases from 2009-2019, a whopping 86% occurred in the labour court."

Earlier this year, for example, the labour court in Antwerp ruled on a remarkable case. One company required all employees who were absent at least three times a year to report to a medical officer each time they reported sick. According to the court, this was not a legitimate measure, but discrimination based on health status. The case illustrates a growing legal reality: treating sick employees differently (even with the best of intentions) can - without proper absenteeism policies - turn into a discrimination case.

Discrimination: protected criteria

Belgian law has some 35 discrimination criteria: personal characteristics on the basis of which you cannot legally discriminate (including gender, age, nationality, religion, etc.). Two of these are more common in labour court cases these days: health condition and disability.

"The term 'disability' is not defined by law, so judges revert to a more social definition," Steven explains. "In this, a 'disability' is a condition of a long-term nature that prevents you from participating fully in work life, such as deafness or limited mobility. 'State of health', in turn, refers to medical problems that are not necessarily long-term but can be cause for protection, such as the flu or burnout."

Once you know, as an employer that an employee falls under a discrimination criterion, there are important consequences. You should not treat that person differently from others, and in the case of a disability, you are obliged as an employer to make adjustments at work, to the extent possible. For example, an employee in a wheelchair is best given a desk on the ground floor if you don’t have a lift.

Preventive or visionary?

Sometimes you may want to act preventively with the best of intentions and closely monitor an absent employee, but it comes across as fishing. You can avoid this by means of a transparent absenteeism policy with objective goals, clear roles, and responsibilities, and a set roadmap on who follows up on what and when.

"Show your employees why your absenteeism policy is important and what you want to achieve with it," Bart advises. "Think of broad goals such as improving the general welfare, ensuring the economic survival of the organisation, ensuring smooth service to the customer, etc. Without such motives, you run the risk of unintentionally discriminating. Just look at that case in Antwerp. 'Those who are often sick automatically get stricter control' may sound logical, but legally it is not true."

Continue to regularly communicate to your employees. That way, they will better understand why you take your measures: to reach a workable solution together, not to target or exclude certain people. This increases transparency and avoids discussions like "Why me and not my colleague?".

A legitimate purpose

Important nuance: individuals with discrimination criteria are not on a pedestal. "As an employer, you may always have a conversation with them about employability and take measures if their absenteeism becomes problematic," Steven explains. "Even dismissal is a possibility. But you should always be able to demonstrate that you are pursuing a legitimate goal and that your approach is appropriate and necessary. Can't you? Then the consequences can be severe, such as six months' wages in damages."

In the Antwerp case, the employer in question said the extra medical checks were necessary for "the welfare of the employees". But that's where he went wrong. "The medical officer should only assess incapacity for work, not someone's well-being," Bart points out. “Therefore, the stated purpose was not legitimate."

Purposeful documentation

Your actions should not only fit your policy, you should also be able to present supporting documents. So it is important to objectively capture the impact of absenteeism on your organisation and make it measurable.

"One example: managers and HR managers often find absenteeism interviews unnecessary," says Bart. "But they are so important. Not only as a moment of connection with your employee, but also from a legal point of view. If you have those conversations effectively and document them, you can show afterwards that you have applied your policy consistently for everyone."

Absenteeism interviews: what can and cannot be done?

How do you conduct absenteeism interviews without crossing medical boundaries? "Focus on the impact of absenteeism at work," Bart advises. "Suppose a caregiver can no longer help patients out of bed due to a physical disability. That affects your service and so you may raise this issue - without going too deeply into the medical aspect. Also ask how you can provide support in doing so."

Starting together

In short, unequal treatment of your sick employees must have a legitimate purpose and fit within your policy. Transparency, clear criteria, and a widely supported absenteeism policy with clear communication are essential in this respect.

An external service such as Mensura can help you draw up a clear and substantiated policy. Not only through policy advice and handy roadmaps, but also with ergonomic and psychological expertise to objectively assess your workload.