Overcoming addiction a challenge both for addict and employer
Severe misconduct by an addicted employee can be difficult to overcome if the position has a lot of trust and responsibility
Apr 28, 2015
By Jeffrey R. Smith
Do you trust your employees? Do you trust your employer? Trust can be a very important part of the employment relationship. Ultimately, employers have to trust employees to do their jobs properly, and employees have to trust their employer is going to live up to its obligations for things like a safe workplace and pay a pay schedule.
If an employer doesn’t live up to that trust, it can face legal repercussions. And if an employee breaches the employer’s trust, the result can be discipline or dismissal.
The standard of trust is higher for certain occupations, such as nurses who administer and handle medication and look after patients’ needs. If people in such occupations breach their employer’s trust, it could also be a breach of the public trust, since members of the public can be affected.
However, when such a breach of trust happens, it’s not always cut-and-dried that the employee has to go. It’s important to get to the root of the problem before passing judgment.
A couple of years ago, an Ontario hospital discovered one of its registered nurses had created false prescriptions for herself so she could obtain drugs. The prescriptions included forged signatures of a couple of doctors at the hospital, who were naturally angry when they found out. The nurse had previously been suspended for three days for stealing drugs.
The nurse denied falsifying the prescriptions and said she was being slandered, though the hospital had video of her at a pharmacy presenting one of the prescriptions. She applied for sick leave during the hospital’s investigation but denied having an addiction. However, shortly after the hospital terminated her employment, she went into drug habilitation treatment.
Though the nurse’s misconduct was severe and the doctors whose names were forged on the prescriptions said it would be difficult to work with her again, an arbitrator found the hospital should have looked more closely at the nurse’s circumstances. The type of misconduct of which the nurse was guilty was often related to addiction — especially since she had received previous discipline for stealing drugs — and when she applied for a sick leave, the investigation should have included a closer look at the reasons for the request.
Though the nurse denied having an addiction, the hospital should have reasonably known there was the potential for a disability to be present and a duty to accommodate. The hospital was ordered to co-operate with the nurse and investigate accommodation options.
When it comes to misconduct by an employee who may have a disability, it’s been established in case law that if the disability had any connection to causing the misconduct, the duty to accommodate kicks in. In the above situation, the nurse’s actions were a serious breach of trust of both the hospital and the doctors, and could call into question the nurse’s ability to make decisions and look after patients. However, because it was related to her addiction, it was believed if she sought treatment she could overcome the addiction and re-establish her ability to do the job.
Addiction to drugs or alcohol is considered a disease and when people seek treatment, there’s a chance they can overcome the challenges and return to a normal and productive life. However, it’s not easy and there can often be relapses. And where there is a high level of trust and responsibility, that can be quite a risk for the employer.
When an employee with a high level of trust and responsibility breaches it due to an addiction, should she be given the same chance of rehabilitation with a return to the same job? Or is the risk too great if the employee has a relapse? Can accommodation include putting the employee in another job with lesser responsibility, even if it means lower pay?
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.