An Ontario hospital discriminated against a nurse who had a drug addiction when it fired her for forging prescriptions for herself, an arbitrator has ruled.
Jennifer Mee was a registered nurse in the specialized mental health unit at the Windsor Regional Hospital in Windsor, Ont. Mee was initially hired in 2006 and the mental health unit was the third hospital department she’d worked in.
On March 14, 2013, one of the hospital’s physicians was told prescriptions for narcotics for Mee had been written in his name and filled at two different pharmacies. But Mee denied writing the fraudulent prescriptions and said she was being slandered.
Three physicians had their names forged for prescriptions and they indicated they were angry and felt their trust had been broken. They also said their professional relationship with Mee would be negatively affected if she returned to work at the hospital.
The hospital suspended Mee with pay while it investigated. Mee applied to the employee health department for sick leave — providing a doctor’s note — and signed up for treatment at an addiction centre.
Mee was identified at one of the pharmacies as presenting a forged prescription. The hospital determined Mee had taken blank prescription forms and forged the physician’s signature in order to get the narcotics. Since Mee didn’t admit responsibility or indicate she had addiction problems, the hospital terminated her employment on March 28. The police also became involved.
In the termination letter, the hospital denied the sick leave due to the termination. The labour relations officer contacted the HR director to inform her Mee was off work due to her disability and requested benefits to continue to help Mee with her recovery. The hospital agreed to keep coverage for program treatment purposes for three months, but felt Mee knew what she was doing, along with the consequences, so any health issues she had should not be causally connected to her misconduct.
A few days after her termination, Mee was admitted into the detox unit of the hospital. She was there for five days before going to an addiction centre with a diagnosis of opiate dependence.
Mee was charged with uttering a forged document, to which she pleaded guilty, and was given a conditional discharge in July 2013. She was also placed on probation for 12 months and banned from purchasing, possessing or consuming drugs except with a medical prescription.
The union filed a grievance on behalf of Mee, arguing the hospital violated the Ontario Human Rights Code and the collective agreement by discriminating against Mee and failing to accommodate her addiction, which was a disability.
Mee testified she began abusing drugs in 2008 following a back injury and she transferred to the mental health unit to better control her problem, since drugs weren’t as readily available there. She admitted to having previously taken medication from the hospital and when she was confronted back in 2009, she lied about it.
Mee claimed she was ashamed of her actions and her addiction controlled her life by the time she did it. She said she denied forging the prescriptions because she was afraid of what would happen.
Mee completed the rehabilitation program on May 21 and was evaluated by a doctor specializing in substance abuse treatment and addiction. He reported Mee was well enough to return to work, with certain conditions.
Arbitrator weighs in
The arbitrator found it was “more likely than not” the hospital was aware Mee had addiction issues and it wasn’t able to get information because of her legal issues. However, it didn’t properly examine her request for sick leave after the administrative suspension and before the investigation was complete.
“It was incumbent upon the hospital to inquire further and to discharge its duty to accommodate (Mee) to the point of undue hardship by forestalling its decision until further enquiries were made of the union and (Mee),” said the arbitrator.
The hospital had accommodated other nurses with addictions who had diverted drugs meant for patients, and forging prescriptions wasn’t really any different, said the arbitrator. The main difference here was there were physicians involved who were angry and felt violated by the prescription forgeries.
“When addicted nurses are accommodated by being given an opportunity to seek treatment for their illness and returned to work… trust has to be rebuilt between the nurse and the hospital and between the nurse and their co-workers,” said the arbitrator. “I can see no reason why physicians at the hospital would not be as capable of rebuilding such trust.”
Mee was “extraordinarily committed to regaining her health,” as evidenced by her immediate admission into detox and then a treatment centre, said the arbitrator. After she was terminated, she acknowledged her addiction and was remorseful. Along with the doctor’s report, the prognosis for a successful return to work was good, said the arbitrator.
The hospital was ordered to co-operate with Mee and the union was to investigate whether or not Mee could be accommodated in employment.
For more information see:
• Windsor Regional Hospital and ONA (Mee), Re, 2015 Carswell-
Ont 5011 (Ont. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at email@example.com or visit www.employmentlawtoday.com for more information.
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