Relying solely on video of injured employee ends badly for employer
The camera doesn’t lie but it sure can get confused sometimes. For employers, that’s something to keep front and centre when making the decision to use video surveillance to spy on a worker suspected of faking an injury or illness.
Jeffrey R. Smith’s article on page 5 of this issue is a textbook example of why employers need to tread carefully. In that case, the Greater Toronto Airport Authority learned an expensive lesson that misusing or misinterpreting video evidence carries a hefty price tag — the bill weighed in at more than $500,000 as the employer was essentially ordered to pay the worker’s wages until she retired, among other damages.
It’s very tempting for employers to resort to hiring a private investigator to tail an employee suspected of malingering. After all, the costs related to abuse of short- and long-term disability are staggering. Between 2001 and 2003, the economy lost the services of roughly one out of every 20 employees for an average of 11 weeks to a long-term sickness or disability absence, according to a 2006 Statistics Canada study. (There’s a small silver lining in the numbers, as they’re trending downwards. In 1993, about one in 17 workers was off for more than two weeks.)
Other interesting numbers emerged from that study: Unionized employees and those with medical or disability insurance coverage were “significantly” more likely to have a personal or work-related leave. The cynical interpretation of those numbers would be that people who have a system to abuse, or job security, are more likely to abuse it. Another view is people afraid of losing their jobs, or who can’t afford unpaid time off, will stay on the job even if they’re not feeling well.
Employers are understandably keen to clamp down on people trying to cheat the system. It drives benefit costs up, it hurts productivity and, left unchecked, could potentially cause a snowball effect — “If Bill is getting away with it, maybe I can too.”
That’s why pulling out the camera is so appealing. All it takes is one phone call to an investigation firm and the employer could have the smoking gun it needs to terminate benefits.
But that red-handed video footage is as dangerous as it is tantalizing. Properly interpreting the images, and putting them in the right context, is not a simple task. And there’s no handy checklist to help employers out — every case is different and judges and arbitrators will weigh each one on its own merits.
What exactly does the video show the employee doing? How often does the behaviour occur? How does that contravene the medical restrictions from his doctor? What is the employee’s work history?
Even the most damning of videos could have a reasonable explanation. When it comes to video surveillance, the best advice to employers is, “Shoot first, ask a lot of questions later.”
