Nurse diagnosed with opioid substance abuse disorder, which is known to impair judgment; Employer didn’t investigate accommodation before dismissal for cause
Employees with addictions can present quite a conundrum for employers – especially employers whose workplaces required a high standard of trust and skill, such as a medical care facility. Employee theft is considered a serious form of misconduct that can often provide just cause for dismissal. But if an employee’s theft – or any other misconduct – might be related to the employee’s addiction, then the employer’s duty to accommodate kicks in before just cause does – even if the employee is a nurse who breached her duties caring for patients.
An Ontario long-term care facility has been ordered by an arbitrator to reinstate and accommodate a registered nurse with an opioid addiction who stole narcotics and falsified records to cover up her theft.
The 50-year-old worker was employed as a registered nurse (RN) at the Sunnyside Home Long Term Care Facility, a long-term care home in Waterloo, Ont., operated by the Regional Municipality of Waterloo. Hired in December 2002 on a part-time basis and moving to full-time in 2004, she was stationed in a particular building at the facility that housed 263 residents, in a unit with 54 total beds. The worker was trained to care for any of the patients in the unit and in 2012 was promoted to team leader, a position that involved co-ordinating resident care, administering medication, and ensuring correct procedures for handling and control of medication.
The worker consistently received positive performance reviews over the years, including kudos for her professionalism and assessment skills.
Sunnyside has a number of narcotic and controlled drugs onsite to treat residents who need them, both for daily use and on an as-needed basis. Each unit has a medication room with a triple-lock system where the drugs are kept, including a medication cart with regular prescription drugs. Registered practical nurses (RPNs) keep control keys to the medication cart. In addition, each unit has an emergency cabinet with a double lock that could be accessed by keys kept by RNs.
Standard practice for drugs that are no longer given to residents and marked for destruction is to keep them in a locked box in the locked medication room separate from drugs yet to be used, and used syringes, used ampoules (glass or plastic bulbs) of drugs, and wasted drug tablets are kept in a sealed sharps container, also in the medication room.
Drug found in staff bathroom
On July 25, 2015, the RN working the night shift in the worker’s unit found an empty ampoule of hydromorphone — a fast-acting, opioid medication that is five times stronger than morphine — in the staff bathroom sink which had not been there earlier. An RPN on duty witnessed the ampoule and put it in a paper cup. The worker arrived around the same time — early for her shift — and said she would pass the cup on to the manager of food services. However, when she did so some time later, the ampoule was in a different cup made of Styrofoam.
Sunnyside reviewed the medication room and found all narcotics accounted for. An investigation involving interviews and the facility's card readers discovered the worker had been present during the time the ampoule would have been put in the bathroom as well as the fact she had been coming in earlier than needed on a regular basis. The worker admitted she had been coming in early but said it was a coincidence she had been there when the ampoule was found.
Several months later, other nurses began noticing the worker would prepare medications in one unit and take them to another unit to administer. She also sometimes prepared a tray of medication in the medication room and then took it to her office before administering it to residents.
On Aug. 24, 2016, an RPN told the manager of resident care that two days earlier she had found the worker sitting on the toilet in the staff washroom — after being in there for some time — with an ampoule of hydromorphone sideways in her mouth. The RPN also said two weeks before that she had seen the worker go to give a resident an injection of hydromorphone, but the resident was asleep and instead the worker placed the syringe in her pocket. The narcotic record indicated that the drug had been administered to the patient.
Sunnyside placed the worker on paid stand-down leave while it investigated. The manager of resident care noticed that when she told the worker to go home, the worker’s eyes were glossed over, though she said she was fine. Later that evening, the worker — who had a kidney condition causing an excess of kidney stones of which the manager was aware — came back with a medical note that said she should be off work for “medically substantiated reasons” for three days.
The worker called the manager on Aug. 29 to report she had had surgery to remove kidney stones and had a stent put in. She said she would be off work for two weeks.
Worker admitted to addiction
Two days later, the worker called again to say she was being admitted to the hospital for severe withdrawal from narcotics. She admitted she had been abusing various drugs including Tylenol 3, Percocet, hydromorphone, and morphine, and had been misappropriating injectable narcotics from Sunnyside for her own use for the past two years. Her addiction had developed in 2014 from taking prescribed Percocet for the pain from her kidney condition, which was when she had started taking narcotics from work.
The worker explained that her misappropriation included failing to give residents the correct dosages of medication that had been documented or withholding medication altogether so she could inject herself. She also falsely recorded items on the narcotic record and the residents’ information to cover up what she was doing, and sometimes kept extra amounts of liquid narcotics instead of wasting them.
Sunnyside reviewed the narcotic record and resident charts from Aug. 1 to Aug. 24, 2016, and discovered six incidents where the worker recorded removing hydromorphone or morphine from the medication room but didn’t record administering the drugs on any charts. Further investigation and interviews with the worker confirmed the worker's confession that she had been misappropriating narcotics and falsifying medical records for the past two years.
The worker admitted she had lied about the empty ampoule of hydromorphone in the staff bathroom on July 25, 2015, and didn’t remember the August 26, 2016 incident. However, she didn’t deny it and expressed remorse for her behaviour.
Sunnyside terminated the worker’s employment on Sept. 29, 2016 for patient abuse — including falsification of records for administration of medication — which it classified as “an irreparable breach of trust and gross misconduct.” It also said accommodation wasn’t possible as team leader RNs had to work independently without supervision at least part of the time and narcotics were always accessible.
The Ontario Nurses Association (ONA) grieved the dismissal, saying the worker’s addiction was a factor in her dismissal and accommodation should have been investigated before resorting to termination. It noted the worker stopped using drugs on Sept. 1, 2016, and successfully completed a five-week inpatient rehabilitation program immediately after her dismissal, in which she had been diagnosed with “a severe opiate use disorder and a mild-to-moderate sedative-hypnotic use disorder.”
Impairment of worker's control
The arbitrator referred to DSM-5 — the standard classification of mental disorders — which states opioids are a “class of drugs which are part of substance-related disorders” and these disorders include “a cluster of cognitive, behavioural, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.” DSM-5 further indicates that “impaired control, social impairment, and risky use are among the diagnostic criteria of substance abuse disorder.” There was no doubt the worker suffered from such a disorder and Sunnyside was aware of it when she disclosed it to her employer, said the arbitrator, adding that the disorder was “characterized by, among other things, compulsive behaviour and either a complete inability or a diminished capacity to resist the urge to engage in behaviour supporting her addiction.”
The arbitrator found there was no evidence the worker engaged in any misconduct before her addiction took hold in 2014, and in fact had shining performance reviews. It was only after she was in the throes of her addiction when colleagues began noticing strange behaviour and raised concerns about patient care. In addition, her behaviour was consistent with her diagnosed substance abuse disorder. As a result, her termination for misconduct that was caused by her disorder meant the disorder was a factor in her termination — which proved prima facie discrimination, said the arbitrator.
Since there was prima facie discrimination, Sunnyside had to prove the worker couldn’t fulfill the bona fide occupational requirement of her position because of her addiction. Sunnyside argued it would be undue hardship to employ the worker where drugs were accessible and working without supervision was required, but the arbitrator found it reached this conclusion without considering how accommodation might work, just how things were structured normally. Sunnyside looked at the case as a just-cause case and never considered the human rights aspect of the situation, said the arbitrator.
“The evidence of the employer’s witnesses about whether the (worker) could be accommodated is based on how the work is currently organized and implemented,” the arbitrator said. “Those opinions were formed and expressed without any analysis or thought about what changes in work organization or implementation might be required and might be possible to accommodate the (worker).”
As far as the breach of trust issue, Sunnyside didn’t inform the residents or their families of the misconduct, so Sunnyside’s reputation was not affected. In addition, it was established that the worker’s addiction contributed to the conduct that breached the trust, not her state of mind when she wasn't impaired. Though there is always the risk of relapse, the facility could impose conditions on the worker such as regular testing, having another nurse on duty to administer medication, and other aspects of a treatment plan — conditions the College of Nurses Ontario had already imposed in order for the worker to work again as an RN and were part of the after-care of the worker’s rehabilitation — could help detect a relapse. There were also other RNs who could perform the role of team leader for a time, the arbitrator found.
The arbitrator determined the worker was discriminated against because of her disability — an opioid substance abuse disorder — and Sunnyside failed to meet its duty to accommodate her. Sunnyside was ordered to reinstate the worker with accommodation to the point of undue hardship and compensate her for loss of pay and damages for injury to dignity, feelings, and self-respect for discrimination — the amount of which was to be negotiated between the worker and Sunnyside.
For more information see:
• Waterloo (Regional Municipality) and ONA (D.S.)., Re, 2019 CarswellOnt 443 (Ont. Arb.).