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May 10, 2010

Spying on the sick: Is video surveillance of workers worth it?

    

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

It’s not uncommon for people to take sick days from work when they’re not really sick. Sometimes the reasons can be just as legitimate as physical illness — like needing a mental break — and sometimes the employee might be just trying to get an extra day off.

Either way, though employers may not necessarily be in favour of this practice, many often look the other way. But if this type of behaviour happens too often, excessive absenteeism can negatively affect a business, especially if the occasional sick day develops into a long-term sick leave.

Many employers develop attendance management programs that monitor sick days and other absences. If an employer become suspicious someone is abusing medical leave, it might resort to outside monitoring of the employee to see if she really is sick or injured. But to what extent can this type of surveillance be relied upon? Should employers be allowed to do this at all?

An Ontario employee was recently awarded big-time damages — more than $500,000 — after her employer accused her of abusing her sick leave and fired her. The worker had a knee operation and her doctor recommended a four-week recovery period. Less than three weeks after the operation, the employer caught her on videotape seemingly doing things beyond what her medical restrictions were and looking like her knee was fine enough to work. The employer didn’t believe her claims she was often on painkillers, and conditions at home were different than at work, and fired her for dishonesty.

A good chunk of the damages were awarded for the employer’s treatment of the worker and its ignoring of medical opinions on her fitness for work. But part of the issue included its reliance on the videotapes and the fact it was monitoring her at all — in this case, it was a long-time worker with a solid record. The arbitrator accepted the videos as pertinent to the employer’s concerns, but found the employer should not have relied on them over medical opinions. But if the employer had notes from the worker’s doctors, why did it need to keep an eye on her at all?

Though the arbitrator accepted the tapes, should the employer have bothered with them? In this case, it wasn’t even monitoring her at first — she happened to be in a relationship with another employee who was under surveillance and when the videotapes caught her the employer continued its surveillance of her. As it turned out, many of the activities the worker was filmed doing were consistent with her physiotherapy and the use of painkillers. And the employer had medical notes saying she should be off work for four weeks.

Covert surveillance of employees outside the workplace to see if they’re abusing their sick leave can raise privacy concerns but in many cases they’ve been accepted as valid. But how much do they really reveal about an employee’s condition? Obviously, if an employee had a serious injury that supposedly keeps her almost immobile and she’s spotted playing sports, it would be more cut-and-dry. But less obvious injuries or surgery recovery might not necessarily be obvious to surveillance. And if the employer has a note from a medical professional, it may not matter what it sees on videotape. In many cases, video surveillance of employees to prove sick leave fraud just might not be worth it.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

    
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