Allowing nurse to work without access to medication not undue hardship: Arbitrator
A nurse who was fired from an Ontario hospital for stealing drugs while off-duty should be reinstated to another position in the hospital, despite the “incredible damage to the employment relationship” she caused, an arbitrator has ruled.
Jennifer Harris was a part-time nurse in acute care at St. Mary’s General Hospital in Kitchener, Ont. Hired in 2004, she sometimes worked full-time hours to fill in for other nurses who were on leave. Her duties in the acute care unit included administering narcotic drugs to patients experiencing pain after surgery, which was done on her own with little supervision.
In 2007, Harris began stealing drugs from the hospital such as Tylenol 3, OxyContin, Percocet and morphine to use herself at home. By 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 keep it from her family and work. In late March 2009, she went to the hospital with vomiting and loss of 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, 2009, Harris was still on sick leave but went to St. Mary’s to steal drugs. 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 that had been 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 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, but 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 and was given a letter of termination that stated her 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 that her actions could have affected the medical treatment of patients due to receive the drugs and 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, it concluded.
The union filed a grievance on behalf of Harris, arguing the thefts were the result of her drug addiction and the hospital had a duty to accommodate her and help her get back 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 at times didn’t mean nurse wasn’t addicted: Arbitrator
The arbitrator disagreed with the hospital’s contention that Harris wasn’t an addict when she began stealing drugs. Medical testimony indicated addiction was progressive and could have various phases that can involve less frequent usage, but the compulsion was always there. The arbitrator found Harris was addicted to drugs right from the beginning of the thefts and was therefore at least partly compelled to steal them.
The arbitrator also found it was possible for the hospital to accommodate Harris, as accommodation did not require a narcotic-free environment, but rather she couldn’t administer drugs and another registered nurse had to 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 around 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 that 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. The arbitrator also ruled that as a way of bearing responsibility for the circumstances, the time from her termination to her reinstatement — more than 16 months — would serve as an unpaid suspension.
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