Canadian Employment Law Today

Drug-stealing nurse reinstated by arbitrator Nurse diagnosed with opioid substance abuse disorder, which is known to impair judgment; Employer didn't investigate accommodation before dismissal for cause BY JEFFREY R. SMITH A n Ontario long-term care facil- ity has been ordered by an arbi- trator to reinstate and accom- modate a registered nurse with an opioid addiction who stole narcotics and falsified records to cover up her theft. e 50-year-old worker was employed as a registered nurse (RN) at the Sun- nyside 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. e 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, ad- ministering medication, and ensuring correct procedures for handling and con- trol of medication. e worker consistently received posi- tive 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 resi- dents who need them, both for daily use and on an as-needed basis. Each unit has a medication room with a triple-lock sys- tem 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 sepa- rate 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 am- poule and put it in a paper cup. e 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. e 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 be- gan noticing the worker would prepare medications in one unit and take them to another unit to administer. She also some- times 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 man- ager 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. e RPN also said two weeks before that she had seen the worker go to give a resi- dent an injection of hydromorphone, but the resident was asleep and instead the worker placed the syringe in her pocket. e narcotic record indicated that the drug had been administered to the patient. Sunnyside placed the worker on paid stand-down leave while it investigated. e 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. e 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 hospi- tal for severe withdrawal from narcotics. She admitted she had been abusing vari- ous drugs including Tylenol 3, Percocet, hydromorphone, and morphine, and had been misappropriating injectable narcot- ics from Sunnyside for her own use for the past two years. Her addiction had de- veloped in 2014 from taking prescribed Percocet for the pain from her kidney con- dition, which was when she had started taking narcotics from work. e worker explained that her misap- propriation included failing to give resi- dents 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' in- formation to cover up what she was doing, and sometimes kept extra amounts of liq- uid 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 hydromor- phone or morphine from the medication room but didn't record administering the drugs on any charts. Further investigation and interviews with the worker confirmed 4 Canadian HR Reporter, a Thomson Reuters business 2019 CASE IN POINT: ACCOMMODATION 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. BACKGROUND

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