Care home must rehire nurse who stole opioids
Arbitrator rules woman’s drug addiction was a disability and she was a victim of discrimination
KITCHENER — A registered nurse who was fired from a long-term care home in Kitchener for repeatedly stealing opioids to feed her addiction must be rehired and compensated for “injury to dignity, feelings and self-respect,” an arbitrator has ruled.
The nurse, identified in the ruling as D.S., was addicted to opioids when she stole narcotics from Sunnyside Home over a two-year period. She falsified medical records to make it look like she injected residents when she actually saved the drugs for herself.
An arbitrator last week ruled D.S.’s addiction was a disability. He also found that the nurse’s union established prima facie (correct until proved otherwise) discrimination and concluded it was wrong to not rehire her. Sunnyside is owned by the Region of Waterloo.
“The evidence shows beyond any doubt that there is a connection or nexus between (her) substance use disorder and the adverse effect of termination of employment for violation of admittedly valid workplace rules,” arbitrator Larry Steinberg said in the ruling.
“Compulsive behaviour and impaired judgment are symptoms of the mental illness of substance use disorder. They were manifested in this case ... by either no capacity or diminished capacity on the part of (D.S.) to comply with workplace rules prohibiting diversion of narcotics and falsification of medical records.”
The Ontario Human Rights Code says “every person has a right to equal treatment with respect to employment without discrimination because of ... disability.”
Most psychiatrists consider opioid addiction disorders to be health conditions, Dr. David Wolkoff, an expert in addiction treatment, testified at the arbitration hearing.
After being fired, D.S. took treatment. Her union, the Ontario Nurses Association, argued she deserves her job back and should be compensated “for any losses including general damages for injury to dignity, feelings and self-respect.”
“I agree,” Steinberg said. The amount of compensation will be set later.
D.S., now 50, was fired by Sunnyside on Sept. 29, 2016, for “theft of drugs and gross misconduct relating to protocols,” the arbitrator said. She had worked full-time as a nurse and team leader at Sunnyside.
From the summer of 2014 to August 2016, D.S. repeatedly stole opioids, including hydromorphone and morphine.
“She documented giving a narcotic to a resident at their false request,” Steinberg said. “She then falsified the charts to show that they had received the narcotics and she instead took the narcotics for herself.”
An employee reported seeing D.S. on Aug. 22, 2016, in a Sunnyside washroom with a glass capsule of hydromorphone “sideways in her mouth.” The arbitrator’s ruling does not say whether she injected herself while on duty, although a manager noted one day her eyes were “glossed over.”
Sunnyside began investigating and put D.S. on paid leave. At the end of August, D.S. told a Sunnyside manager she was being admitted to hospital to treat severe narcotic withdrawal symptoms. She admitted stealing and injecting drugs from Sunnyside. She was fired a month later.
D.S. began taking opioids due to kidney problems. Her doctor prescribed Percocet. She continued taking it to relieve stress and later began using nonprescribed opioids daily.
On Oct. 5, 2016, D.S. entered a 35-day, in-patient drug treatment program at Homewood Health Centre in Guelph, where she was diagnosed with a severe opioid use disorder and a mild to moderate “sedativehypnotic use disorder.” She successfully completed the program and wanted her job back.
The College of Nurses of Ontario prohibited her from practising nursing until June 2017, when she could return to her occupation if she followed treatment recommendations and met several other conditions, including having no access to controlled drugs and being observed at all times.
Sunnyside managers said the home could not accommodate D.S.
“They testified that because of the prevalence of controlled substances in the workplace, all healthcare professionals would have access to controlled substances as part of their duties,” Steinberg said. “In their view, it is not possible to work as a Team Leader or RN without some access to them.”
Steinberg ordered the home to find a way to accommodate D.S.
If she follows her recovery program, the risk of relapse is not huge, testified Dr. Gerrit Veenman, the woman’s doctor. If she breaks any conditions or if a relapse affects her ability to do her job, her certificate of registration can be revoked.