Canada – Tough pill for employers to swallow: arbitrator reinstates nurse who stole narcotics and falsified medical records

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In the recent case of Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, an arbitrator reinstated a nurse battling with drug addiction after her employment had been terminated for theft of narcotics and for falsifying medical records. This decision emphasises an employer’s duty to inquire and meaningfully consider accommodation options when faced with employee addiction, even in situations of serious misconduct.

The Context

The Ontario Human Rights Code (the ‘Code’) prohibits discrimination on the basis of disability, including adverse treatment linked to substance addiction. The Code imposes a substantive duty on employers to take all reasonable steps to accommodate an employee’s disability to the point at which the accommodation would constitute undue hardship for the employer. Employers also have a ‘procedural’ duty to accommodate under the Code. Among other things, this includes a procedural requirement to inquire into whether an employee (who has not self-disclosed) is suffering from a disability where there are reasonable grounds to believe that to be the case and to duly consider whether and how a disabled employee may be accommodated.

Background Facts

In the summer of 2016, the employer learned that the nurse in question had been consuming narcotics at work and pocketing medications rather than administering them to patients. Additionally, after stealing the drugs, the nurse would then falsely report that the medications had been dispensed to the residents.

The nurse was suspended pending investigation. During the course of this suspension, the nurse informed her employer that she had a substance abuse problem and that she was being admitted to the hospital for withdrawal from narcotics. At this time, the nurse also admitted that she had been misappropriating narcotics meant for her patients, and falsifying medical records to conceal the theft, for approximately two years.

Following its investigation, the employer terminated the nurse’s employment in September 2016. As it was obliged to do, the employer also reported the events to the College of Nurses of Ontario (the ‘CNO’). The CNO prohibited the nurse from practicing nursing until June 2017.

After being terminated, the nurse entered an inpatient program and was diagnosed with severe substance abuse disorders. Upon successful completion of a rehabilitation program, the nurse entered into an undertaking with the CNO that set out the conditions under which she could return to practising. Those conditions included: continuing to undergo treatment for her addictions; not administering or having access to controlled substances; and only working in settings where her work could be directly monitored at any given time.

The Ontario Nurses Association expressed its unhappiness at the termination of the nurse’s employment and requested that she be reinstated. The Union argued that the nurse’s misconduct, including the theft of narcotics and the falsification of patient records, were symptoms of her addiction which therefore gave rise to the duty to accommodate. The Union asserted the employer breached its duty to accommodate by failing to inquire into whether the nurse had a disability, failing to consider accommodation options and failing to prove that it could not accommodate the nurse’s restrictions short of undue hardship.

The Decision

The arbitrator found that the nurse’s ‘compulsive behaviour and impaired judgment are symptoms of the mental illness of substance use disorder.’ Therefore, the employer had a duty under the Code to accommodate the nurse’s drug addiction to the point of undue hardship.

The arbitrator further ruled that the employer had violated its procedural duty to accommodate because the employer had terminated the nurse’s employment without giving any consideration to accommodation issues, and because the employer had initially failed to in inquire into whether the nurse was experiencing some kind of disability despite troubling reports about her appearance and behaviour.

In what is perhaps the most concerning aspect of the decision for employers, the arbitrator rejected the employer’s argument that it would amount to undue hardship to reinstate the nurse into the workplace in accordance with a ‘no administration / no access’ to medications restriction.

Accordingly, the arbitrator ordered the employer to reinstate the nurse and to pay her certain monetary compensation.

What Does this Mean for Employers?

This is a troubling decision for employers, especially those operating in industries servicing vulnerable persons such as residents of long-term care homes or hospital patients. In essence, the decision suggests that it will not necessarily constitute undue hardship for an employer to continue to employ someone who has a history of stealing and using narcotics and falsifying records to cover her tracks, even in facilities where the presence of those narcotics is widespread. This reasoning arguably fails to adequately account for, among other things, the legitimate interests of the residents who live and are cared for in the facility.

Employers’ duty to accommodate employees with substance addictions continues to be one of the most pressing and evolving issues in labour law. If employers hope to avoid a result like the one that occurred in the Sunnyside Home, they must be extremely careful in how they approach and address workplace issues involving such employees.