An employee is missing shifts regularly. It is affecting the team, the workload, and your business. You want to address it — but you are not sure what you can do legally without crossing a line.
Here is how to handle it properly.
First — Understand Why They Are Absent
Before taking any action, find out the reason. This is not just good management — it is a legal requirement.
Absences fall into two broad categories, and each carries different legal obligations:
Medical or disability-related absences — if the absences are connected to a medical condition, disability, mental health issue, or family caregiving responsibility, the Ontario Human Rights Code applies. You have a duty to accommodate before you can take any disciplinary action.
Non-medical absences — if the absences are unexplained, habitual, or unrelated to a protected ground, progressive discipline is available to you.
Acting without knowing which category applies is one of the most common — and most costly — mistakes employers make.
The Duty to Accommodate Comes First
If an employee’s absences are connected to a disability or medical condition, you cannot simply discipline or terminate them without first:
- Asking about the reason for the absences — sensitively and without demanding a diagnosis
- Requesting reasonable medical documentation confirming the need for leave or modified duties
- Exploring accommodation options — modified hours, remote work, a leave of absence, or adjusted duties
- Documenting every step of the accommodation process
You must accommodate up to the point of undue hardship — which is a high legal bar. Inconvenience, cost, or disruption to routine generally does not meet it.
Terminating an employee for disability-related absences without exploring accommodation is discrimination under the Human Rights Code — and the resulting liability is significant.
Progressive Discipline for Non-Medical Absences
If the absences are not connected to a protected ground and the employee has no medical explanation, progressive discipline applies.
Follow these steps in order:
1/ Verbal warning — meet with the employee, document the conversation, and clearly state your attendance expectations.
2/ Written warning — if absences continue, issue a formal written warning outlining the pattern, the impact on the business, and the consequences of continued non-attendance. Keep a copy on file.
3/ Final written warning or suspension — if the pattern persists after a written warning, escalate. Make clear that termination is the next step if attendance does not improve.
5/ Termination — if the employee continues the pattern after documented warnings and a genuine opportunity to improve, termination may be justified.
Each step must be documented. Courts expect to see a clear paper trail before accepting that termination for attendance issues was warranted.
What You Need to Document at Every Stage
Documentation is everything in these cases. Keep records of:
- Dates and reasons given for each absence
- All conversations with the employee about attendance
- Copies of every warning issued and signed
- Any accommodation requests made and what was offered
- The business impact of the absences — missed shifts, coverage costs, team disruption
If the matter ends in termination and the employee makes a claim, your documentation is your defence.
When Termination May Be Justified
Termination for frequent absences can be justified — but only after:
- The reason for absence has been investigated
- Accommodation has been explored and exhausted where required
- Progressive discipline has been applied and documented
- The employee has been given a genuine opportunity to improve
- The absences are genuinely excessive relative to the role
Even then, termination for attendance issues is generally treated as without cause — meaning proper notice or severance pay is still owed unless just cause can be established, which requires an extremely high level of culpable conduct.
What You Cannot Do
- Terminate without investigating the reason — especially if a medical condition may be involved
- Skip straight to termination without progressive discipline for non-medical absences
- Discipline an employee for taking protected ESA leaves — sick days, family responsibility leave, and emergency leave are legally protected
- Request a diagnosis — you can ask for medical confirmation that the employee has a condition requiring accommodation, but you cannot demand the specific diagnosis
The bottom line: Frequent absences are a legitimate business problem — and Ontario law gives you tools to address them. But the process matters as much as the outcome. Investigate first, accommodate where required, discipline progressively, and document every step. Getting this right protects your business. Getting it wrong is expensive.
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