Drug-stealing nurse entitled to accommodation analysis

Hospital’s claims it couldn’t trust nurse nor accommodate restrictions on her nursing licence not accepted without examining options
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 07/19/2010

An Ontario hospital found out it couldn’t simply fire a drug-addicted nurse for stealing drugs while on duty, but rather it needed to make more of an effort to accommodate her disabling addiction.

The Collingwood General and Marine Hospital in Collingwood, Ont., employed a registered nurse in the emergency room who had a drug addiction problem. On Nov. 23, 2007, the nurse was caught stealing drugs from the emergency room and taking them. It was then discovered she had given herself drugs eight times that day.

The nurse was told by police she would have to go to a drug rehabilitation program to avoid being charged. She agreed and attended a month-long treatment program. During the time off, she received sick-leave benefits and later long-term disability benefits.

The nurse’s drug addiction stemmed from serious medical problems she suffered in 1994 that required treatment with morphine and other drugs. At the same time, she suffered physical, emotional, mental and sexual abuse from her husband and she began to rely on the drugs to cope. She began to steal drugs from the hospital where she worked at the time. At first it was only drugs left over from treatment of patients, but soon she began to put in false orders for drugs. She was soon caught and fired. After receiving treatment, she worked in a non-nursing job and eventually started working at the Collingwood hospital in August 2003. When she interviewed for the job, she disclosed her addiction and rehabilitation.

The nurse was fine for a while, but in 2005 she separated from her husband and stopped going to after-care programs. She relapsed and began stealing drugs when she started working in the emergency department. When ordering a dose for a patient, she would often order a dose for herself as well. When she was caught in November 2007, the nurse had been using hospital drugs for two years.

Restrictions placed on nursing licence

By April 2009, the nurse had completed her rehabilitation program and wanted to return to work as a nurse. She worked with the College of Nurses and doctors who were treating her to establish conditions under which she would be able to work. The restrictions on her licence included a prohibition from working with narcotic drugs or administering them to patients. The college also said she would have to be accompanied by a monitor at all times to ensure she was following the restrictions and would have to submit to a urinalysis test if anyone suspected a relapse. The conditions on her licence were to be in effect for 44 months.

In November 2009, the nurse’s long-term disability benefits ran out and her doctor declared her fit to return to work under the restrictions. However, on Nov. 18, 2009, the hospital sent the nurse a letter of termination, stating the reason for termination was a betrayal of its trust and endangering patients under her care. It also said the restrictions established by the College of Nurses couldn’t be accommodated.

The union filed a wrongful dismissal grievance, claiming the nurse’s drug dependence was a disability and the hospital fired her because of that dependence. It argued the hospital was required to determine whether it was possible to accommodate her and her restrictions before terminating her employment.

The hospital argued it accommodated the nurse when it first hired her despite knowing about her drug dependence but allowing her to work somewhere other than the emergency department, where drugs are more readily available. When she stopped going to after care programs, she failed to continue her rehabilitation and set up her relapse. Because she didn’t do her part, the requirement to accommodate no longer applied, the hospital said.

Rehabilitation resumed; accommodation required

The Ontario Arbitration Board noted an employee who withdraws from treatment may not be motivated to succeed, but not every relapse means someone won’t ultimately succeed. It found the nurse did return to a treatment program after she was caught, including a one-month rehabilitation program. After completing that program, she continued with after-care programs and had done so for two years. Her doctor said she was fit to work as long as she didn’t have access to drugs and attended her after care programs and the College of Nurses allowed her to keep her licence with restrictions.

The board found these circumstances required the hospital to investigate its options for accommodating the nurse. Because it didn’t do so, it discriminated against her because of her disability of drug dependence.

“It may be that the employer is unable to accommodate the (nurse) within the restrictions outlined by the College of Nurses and (her doctor). But it is my conclusion that before terminating (her), the employer was required to consider whether it could accommodate (her) within the stated restrictions,” said the board. See O.N.A. v. Collingwood General and Marine Hospital, 2010 CarswellOnt 2515 (Ont. Arb. Bd.).

Add Comment

  • *
  • *
  • *
  • *