An Ontario arbitrator has ordered a long-term care home to re-hire and financially compensate a nurse who was fired after stealing opiate drugs and falsifying records.
The arbitrator agreed with the nurse and her union, the Ontario Nurses Association, that the Region of Waterloo’s Sunnyside Home discriminated on the basis of addiction when they refused to re-hire the woman.
Toronto labour lawyer Muneeza Sheikh told CTV Kitchener that she believes the arbitrator’s decision “sets an extremely dangerous precedent.”
Sheikh said employers are required under Ontario’s Human Rights Code to accommodate employees with disabilities, including addictions, only “up to the point of undue hardship.”
“You should not be accommodating the employee to the detriment of patient care,” said Sheikh.
The nurse – referred to in the ruling as “the grievor” – was terminated on Sept. 29, 2016 “for theft of narcotics and gross misconduct relating to protocols.”
“From approximately the summer of 2014 until August 2016 the grievor engaged in the repeated misappropriation of narcotics and controlled medications for her own use, including Hydromorphone (brand name Dilaudid) and Morphine,” the document states.
“She documented giving a narcotic to a resident at their false request,” it goes on. “She then falsified the charts to show that they had received the narcotics and she instead took the narcotics for herself.”
At one point, a fellow nurse opened a bathroom door and “saw the grievor sitting on the toilet with an ampoule of Hydromorphone sideways in her mouth.”
Colleagues raised concerns about the nurse, including the “commission of medication errors during which she seemed confused and not focused,” according to the document.
The nurse claimed that, prior to 2014, she had used the opiate Percocet “strictly to control her pain in connection with kidney stones,” but that eventually turned into an addiction.
After she was fired, the nurse was diagnosed with “a severe opiate use disorder and a mild-to-moderate sedative-hypnotic use disorder” and underwent a 35-day residential drug treatment program.
The Region of Waterloo argued to the arbitrator the nurse could not be brought back to work because she couldn’t fulfill duties, including “having the trust of residents, their families, other healthcare professionals.”
The union had a number of medical experts testify about the nurse’s addiction, and they argued that the employer “breached the procedural and substantive aspects of the duty to accommodate.”
“The union requests that the grievor be reinstated to employment, that the employer be ordered to accommodate her and that she be compensated for any losses including general damages for injury to dignity, feelings and self-respect,” the arbitrator wrote. “I agree.”
Dorothy Pearce, whose son is a resident at the home, said she has “some sympathy” for the nurse and is glad that she got help but worries that it could happen again.
“I think that the rights of the residents should take priority,” Pearce said.
Jane Meadus, from the Advocacy Centre for the Elderly, also disagreed with the ruling.
“She’s abused the residents by not providing proper care to them,” Meadus said. “Taking away their medication is a form of abuse.”
However, addiction physician Dr. Yelena Chorny said that if the nurse is being allowed to practice, “that’s because she’s done the work to show she actually can be responsible, can be healthy.”
The nurse’s union, meanwhile, told CTV Kitchener in a written statement that the nurse sought help for her addiction and went through successful treatment.
“Having an addiction should not keep a (registered nurse) ... from continuing in their chosen field if they have received appropriate treatment,” the union wrote.
The Region of Waterloo’s Bryan Stortz said they are obligated to comply with the law and pay out any money awarded by the arbitrator.
“We will do everything possible to minimize potential risk to vulnerable residents, clients and staff,” he said.
