Care must be taken with employees with addictions — even when the situation seems cut-and-dry

Original posting written by Howard Levitt and published in the Financial Post, March 13, 2019

Most people would assume that if a nurse was caught stealing narcotics, withholding medication from patients and falsifying medical records, a prompt and immediate termination would be the justified response — and the end of the matter.

Even “DS,” the 50-year-old registered nurse at the centre of just such a set of events, and her union agreed that she had engaged in the “highest level of misconduct.”

But on Jan. 11, 2019, an Ontario arbitrator ordered DS’ former employer, the Region of Waterloo’s Sunnyside Home Long Term Care Facility, to reinstate DS to her former position. Not only that, Sunnyside was ordered to pay DS compensation for her pain and suffering.

To the layperson, this might seem a ridiculous result. The issue was that DS suffered from an opioid addiction.

Ontario’s human rights laws consider health conditions, including diseases and addictions, as disabilities; individuals with addictions are protected against discrimination — and in terminating DS, the arbitrator held that Sunnyside had discriminated against DS on the basis of her disability.

Considering the growing number of individuals addicted to narcotics and opioids, DS’ case provides a valuable reminder to employers of the care that must be taken in situations that otherwise look cut-and-dry.

DS was a registered nurse and team leader at Sunnyside, a long-term care facility in Waterloo. She was responsible for a unit with 54 beds and was “a great RN” with excellent performance reviews.

Narcotics were under lock and key. Strict records were maintained of the movement of narcotics and DS had been fully trained on the record keeping.

From 2014 until August 2016, she used her position to steal powerful narcotics to feed her addiction. She then falsified patient records, narcotic records, and other medical records to hide her theft.

Sunnyside had previously investigated. In 2015, Sunnyside employees had found an empty opioid container in the staff bathroom and DS reporting suspiciously early for a work shift. Sunnyside staff had also noticed declines in DS’ physical appearance and hygiene. However, all the narcotics appeared accounted for.

In August 2016, another staff member alerted the employer of two incidents, including one where DS was seen pocketing opioids rather than administering them to a patient.

The employer started an investigation and placed DS on paid leave. Nine days into her leave DS admitted to the employer that she was in the hospital for severe withdrawal from narcotics and that she had been abusing codeine, Percocet, Dilaudid and morphine.

DS also confessed to withholding prescribed medications from patients or shorting their dosages so she could use the opioids for herself. The employer identified six incidents in one month alone where DS recorded removing medication for residents but not administering it. She admitted that, for two years, she had been stealing drugs to meet her daily use of non-prescription opioids.

After the investigation and confession, Sunnyside terminated DS. With patient abuse from withholding drugs falsifying records and theft, Sunnyside had lost all trust in DS.

Critically, the Ontario College of Nurses suspended her from practice but then allowed her to be reinstated on an agreement to abide by stringent conditions, including monitoring and intensive treatment.

Sunnyside made two major mistakes: first, in failing to make enough inquiries about its suspicions that DS might have an addiction, and secondly, in its refusal to re-hire DS when the College had indicated she could return to work.

Other factors that Sunnyside did not consider were equally important: DS testified that she had felt shame and embarrassment about her addiction, which is why she denied any addiction. DS had also, by the hearing, been clean of any opioid use for two years and had participated in intensive treatment, with a positive prognosis that suggested she was unlikely to relapse.

All of this suggested to the arbitrator that Sunnyside had first discriminated against DS, and then failed to accommodate her disease. Addictions are a disease and as the arbitrator held, “persons suffering from that disease have little or no control over their addiction.” As DS’s behaviour was a result of her addiction, he held that Sunnyside’s termination of DS was discriminatory because it was based on her disability.

Another point for employers to remember: the requirement to accommodate an employee with a disability is to the point of “undue hardship.” Sunnyside had argued that it could not rehire DS because Sunnyside could not meet the stringent terms the College required DS to meet in order to practice: for example, she had to have no access to narcotics and had to be regularly monitored.

Sunnyside’s arguments were flatly rejected. Although it was impossible for her to be kept from any narcotics as work at Sunnyside was currently organized, the arbitrator held that Sunnyside had a duty to go further than that and consider whether a re-organization would solve that problem.

For employees with addiction issues, DS’ case are a note of hope, reaffirming that employers need to recognize addiction as a disease that requires accommodation. It is critical that the employer be made aware as soon as possible of the addiction — the employer cannot, after all, accommodate something it is unaware of.

For employers, the case should be a sobering reminder of the care that needs to be taking in dealing with employees with addiction issues — lest, like Sunnyside, the employer finds themselves on the wrong side of the law.

This decision reflects the current law although there are strong arguments for a different result. There is no addiction that forces you to lie or that renders you unaware of the fact that you are breaking the rules. Strong policies requiring disclosure of the addiction so that it can be treated and an arbitral and judicial mindset that theft, patient abuse and falsification of medical records represent an undue hardship under human rights legislation so overrides the compulsions of addiction, could and should lead to a different result.