February 2015
PFD | Labour

Absence from work and Facebook: When an employee's Facebook status is incompatible with an absence from work due to illness

By Amélie Chouinard Lawyer

An employee presents you with a medical certificate for a two-week sick leave due to a back sprain. Though this unplanned absence wreaks havoc on your operational planning, you are understanding and encourage your employee to rest and get back on his feet.

But to your surprise, you realize that, while on leave, the employee is updating his Facebook status and posting photos that suggest that his back injury may not be as serious as he claimed. He has betrayed your trust.

What should you do?

First and foremost, it is important to remember that employees are bound to act faithfully and honestly towards their employer. An employee who lies to his employer about his health status is committing a fault and may face severe disciplinary action.

However, before making any decisions, specifically with regards to disciplinary action, certain steps may (paragraph 1) and must (paragraphs 2, 3 and 4) must be taken.

1. Recommended: If you have reasonable grounds to believe that your employee is involved in activities that are not compatible with his health status, you may mandate a special investigator to carry out video surveillance. However, mere doubt does not constitute a reasonable basis to believe. You must have concrete evidence, such as a post on Facebook or a report from a colleague, to warrant surveillance. Otherwise, the footage may not be admissible in court later on.

Note: Facebook posts obtained through deception are not admissible in court. On several occasions, courts have denied the use of such evidence because the employer had created a fictitious Facebook account with the sole purpose of befriending the employee.

2. Mandatory: You must obtain a medical assessment by a physician designated by you. The physician will examine the employee and evaluate the compatibility of the alleged diagnosis with the activities. Without this assessment, the courts generally cancel dismissals, considering that the employer acted on subjective perceptions that were not verified by a medical expert (Ayotte and Alarme Perfection inc., Commission des relations du travail, 2014 QCCRT 0636).

3. Mandatory: If the physician appointed by you concludes that the employee's ailment and activities are incompatible, you must meet with the employee to clarify his activities before determining appropriate disciplinary measures. Should the employee deny the activities, he should view the footage and be asked to comment.

4. Mandatory: Once you have taken all of these steps, it is important to weigh the aggravating (denial, lack of remorse, prior disciplinary record, etc.) and mitigating factors (admission, remorse, job tenure, clean disciplinary record, etc.) in order to determine appropriate disciplinary measures (warning, suspension, dismissal).

Do not hesitate to contact us if you have any questions regarding these steps or for support in making the right decisions based on your particular situation.