Surveilling employees on sick leave: Lior Samfiru on 640 Toronto

Interview Summary

Toronto school boards have issued a reminder to educators that sick leave should only be used when genuinely ill, cautioning that misuse could lead to surveillance and potential termination of employment. Over the past year, several teachers have been dismissed after surveillance footage revealed they were not unwell but instead living in another province or spending time at a casino.

Lior Samfiru, an Ontario employment lawyer and Co-founding Partner at Samfiru Tumarkin LLP joined 640 Toronto’s Davelle Morrison to discuss the rights of employees on medical leave.

Interview Notes

• Hiring private investigators: Samfiru noted that the practice of surveilling those on medical leave is not new. “Insurance companies, the ones that cover disability leaves, have been doing this for years. The idea is to weed out individuals who are not disabled and trying to get paid when they shouldn’t be.” Samfiru went on to explain that employers who feel there is a systematic problem are within their rights to employ surveillance but it has limited advantages.
• Disadvantages to surveillance: “An investigator could be helpful to try and weed out those in situations who said they are unable to work for a long time and are working elsewhere,” said Samfiru. “For those sick for a couple of days, an investigation is unlikely to be helpful. Employers should be careful of what weight they give to surveillance results.”
• Booking days off for appointments: Samfiru explained that while employers in some situations do not require sick notes, in those that do employers must give employees appropriate time to acquire a note. “An employer must act reasonably and they can’t punish an employee for failing to provide a note by when they’ve requested it.”
• Access to personal days and time off for teachers: “Collective agreements would provide for personal days, sick days, etc. The concern for some boards has been individuals calling in sick when they can work,” Samfiru explained. “In a way, that’s time theft.”
• Reason for termination: Samfiru cautioned employers who have let employees go after discovering a misuse of sick days. “Even if an employee has committed an offence, an isolated incident of misconduct should not lead to a termination “for cause”.
• Alternative options for employers: “I think that this is not a good use of resources for isolated incidents. Employers can ask more questions, or ask for a doctor’s note. Employees should let their employers know that their illness doesn’t necessitate complete time in bed,” Samfiru cautioned. “Employers cannot demand to know private medical conditions.”

Related Resources

For further insights and discussions related to employee rights, explore the following resources:

• Disability Law Show – What you should know about medical leave
• Termination of employment due to illness