Drug-addicted nurse reinstated after stealing drugs from work (Legal view)

Accommodation does not require narcotic-free environment, other nurses can administer drugs: Arbitrator
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 05/06/2011

A nurse who was fired for stealing drugs from her work should be reinstated to another position in the hospital, despite causing “incredible damage to the employment relationship,” an arbitrator has ruled.

Jennifer Harris was hired in 2004 as a part-time nurse in acute care at St. Mary’s General Hospital in Kitchener, Ont. She sometimes worked full-time hours to fill in for other nurses on leave. Her duties included administering narcotic drugs to patients experiencing pain after surgery, which she did with little supervision.

In 2007, Harris began stealing drugs from the hospital such as Tylenol 3, OxyContin, Percocet and morphine for her own personal use. In 2009, she realized she had a problem and told her doctor who referred her to a treatment program. However, her drug abuse continued and she tried to hide it from her family and work.

In late March 2009, Harris went to work even though she was vomiting and losing her sight, which she told emergency staff was caused by mononucleosis. After the incident, her doctor put her on sick leave as of April 2.

On April 9, Harris was still on sick leave but went to St. Mary’s to steal drugs while off duty. Her manager saw her in the unit in street clothes near a drug dispenser. After Harris left, the manager generated a report from the machine and discovered Harris had used her access password twice to withdraw drugs prescribed for a patient. The report also showed Harris had made two other withdrawals the previous day.

Harris was summoned back to the hospital and confronted with the report. She admitted to taking the drugs on the two days as well as committing a theft a few days earlier, but didn’t mention she had been doing it for two years. The police and the College of Nurses were called, though the police didn’t file any charges.

Harris met with the director of HR and apologized, saying she had been referred to an outpatient treatment program. The HR director wished her well but, a few days later, advised her she was being terminated. Harris again apologized but was given a letter of termination that stated theft of drugs was “extremely serious misconduct” and the use of her access status was a breach of trust that damaged the employment relationship.

The letter went on to explain her actions could have affected the medical treatment of patients who were prescribed the drugs and also created an incorrect record of doses. This created “an entirely unacceptable risk to the hospital’s ability to provide proper care and maintain its reputation” and violated the standards of practice for a registered nurse, said the letter.

The union filed a grievance on behalf of Harris, arguing the thefts were the result of drug addiction and the hospital had a duty to accommodate her and help her return to work after treatment. The hospital argued Harris was a recreational user when she started stealing drugs and her behaviour was not affected by an addiction, as evidenced by the fact she didn’t use drugs at work and didn’t buy them anywhere else. It also said accommodating Harris would be undue hardship because of the nature of her position.

Limited drug usage didn’t mean nurse wasn’t addicted: Arbitrator

The arbitrator disagreed with the hospital’s contention Harris wasn’t an addict when she began stealing drugs. Medical testimony indicated addiction is progressive and can have various phases that involve less frequent usage, but the compulsion is always there. Harris was addicted to drugs from the beginning of the thefts and was, therefore, at least partly compelled to steal them, found the arbitrator.

It was also possible for the hospital to accommodate Harris as accommodation did not require a narcotic-free environment, said the arbitrator. She couldn’t administer drugs but another registered nurse could be on duty with her to perform that function. Medical opinion didn’t stipulate she couldn’t be exposed to drugs at all, said the arbitrator, and it wasn’t difficult to have another nurse nearby to administer drugs to patients since that was usually the case anyway.

“I do not see the recommendation as requiring any specific nurse to take over (Harris’) medication duties,” said the arbitrator. “Rather, it appears another registered nurse must be designated to take over the administration of drugs for each shift. Since any nurse is qualified to administer medication, I do not accept the employer would be subject to undue hardship in making such arrangements.”

The arbitrator recognized there was a risk Harris could violate the hospital’s trust again and suffer a relapse, but he accepted a positive prognosis from Harris’ doctor that she would recover and be able to work at the hospital again.

“There is no doubt that (Harris) has caused incredible damage to the employment relationship as a result of her behaviour. There is also no question (she) has severely undermined the level of trust with her employer,” said the arbitrator.

However, the arbitrator accepted the positive prognosis and Harris’ expressed willingness to recover and return to work. Considering her termination from St. Mary’s would likely mean the end of her nursing career, the arbitrator ordered the hospital to reinstate her but in a different part-time position where she could be accommodated. As a way of having Harris bear responsibility for the circumstances, the time from her termination to her reinstatement — more than 16 months — would serve as an unpaid suspension, ruled the arbitrator.

For your information see:

•St. Mary’s General Hospital v. O.N.A., 2010 CarswellOnt 10628 (Ont. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit employmentlawtoday.com.

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