Canadian Employment Law Today

CANADIAN EMPLOYMENT LAW TODAY Published by Canadian HR Reporter, a Thomson Reuters business 2014 9 The nurse was observed staggering and stumbling, red in the face and sometimes unmoving while staring off in to space. She also had diffi culty picking up a cup and trying to put a straw in the lid. Addiction still a disability months after nurse's termination Addiction diagnosed several months after dismissal, but employer should have had an inkling performance issues were caused by it: Arbitrator | BY JEFFREY R. SMITH | AN ONTARIO nurse who claimed an ad- diction disability after she was dis- missed for unprofessional conduct has been reinstated. Sartcia Pinsonneault was a registered nurse hired in 2007 by Hamilton Health Sciences (HHS) in Hamilton. Early on in her tenure, she developed a confl ict with some of her co-workers over her accusation of sexual assault against a co-worker's husband. Eventually, things got to the point where Pinsonneault had to take a year off work for stress leave. Pinsonneault returned in October 2010 and eventually found a position in the palliative care program. However, by early 2011 she was having perfor- mance issues, leading to a meeting on June 9 about defi cient documentation for patient admissions. HHS developed a learning plan for her to improve her performance, but Pinsonneault failed to complete it. She also didn't complete a nursing skills inventory as requested and failed to show up for a follow-up meeting. Pinsonneault worked a shift on July 6 in which she failed to follow proper standards for the management of a pa- tient's death process, gave too much narcotic to a patient when the patient's wife demanded it, failed to chart cer- tain events properly, mishandled a chest tube drainage bag and IV pump, didn't document additional medication doses for a patient and failed to properly chart the progress of patients. She recorded nothing at all in the charts of four pa- tients she treated. Employee suspended for misconduct HHS questioned Pinsonneault about that shift and she had gaps in her mem- ory with no real explanation for some of the events, other than she was very busy. HHS suspended Pinsonneault for 10 days without pay and required her to participate in a comprehensive learning plan. She was also restricted to working only when another registered nurse was present. Over the next two months, Pinson- neault was sent home or went home on her own on several occasions for being unwell, groggy or having cold symp- toms. She completed her learning plan by September. On Sept. 17, 2011, Pinson- neault told a registered practical nurse on duty she had a migraine headache. The nurse later observed her stagger- ing and stumbling, red in the face and sometimes unmoving while staring off into space. Pinsonneault also had diffi - culty picking up a cup in a kitchen cup- board and trying to put a straw in the lid. The nurse also saw mucous coming out of Pinsonneault's nose and mouth. Pinsonneault's behaviour was report- ed to the charge nurse, who interviewed Pinsonneault and sent her home. HHS investigated and discovered a number of errors Pinsonneault had made on her shift and even that the spouse of one pa- tient asked that Pinsonneault not come near her husband. HHS interviewed Pinsonneault about her behaviour and she said she had a migraine, high blood pressure and was experiencing stress outside of work. HHS was concerned Pinsonneault had chemical dependency issues and thought she might be responsible for the theft of some narcotics that had gone missing. Pinsonneault denied any sub- stance abuse, saying she didn't do drugs because was allergic to some narcotics and she only drank beer occasionally. HHS accepted Pinsonneault's denial and didn't investigate further. It decided she wasn't fi t for duty as a nurse and terminated her employment on Oct. 3, 2011. In March 2012, after Pinsonneault had worked briefl y at a nursing home and was let go, she underwent an indepen- dent medical examination to determine her fi tness to practice nursing. She tested positive for cocaine, morphine, opiates, Oxycodone and cannabis. A doctor's re- port noted she suffered from substance abuse and her performance issues were "likely related to her active addiction." Pinsonneault followed the doctor's recommendation to assist in her recov- ery and her efforts to become fi t to prac- tice nursing again, including attending a residential treatment program and Alco- holics Anonymous meetings. She didn't initially fully abstain from drugs and alcohol and an addictions specialist di- agnosed her in June 2013 with addictive disorders for which she was in deep de- nial. She was still in "active addiction" and not ready to return to work. The Ontario Nurses' Association fi led a grievance for her suspension and dis- missal, arguing her misconduct was the result of an addiction that HHS should have been aware of and accommodated. The arbitrator noted that initially there was no reason for HHS to sus- pect addiction issues were the cause of Pinsonneault's performance problems, but the nature of her problems on July 6, 2011, followed by her memory gaps might have raised the possibility. If any- thing, however, HHS was suspecting something was up after the shift when she had co-ordination problems and she exhibited "a demeanour and personal behaviour that were indicative of sub- stance abuse of some sort." Though HHS said it had no choice but to accept Pinsonneault's denial of sub- stance abuse, the arbitrator noted that "denial is often a symptom of an addic- tion disability" and HHS had an obliga- tion to investigate further. Because the hospital should have acted on the sus- picion of an addiction, the duty to ac- commodate existed even though Pinson- neault wasn't diagnosed until several months after her termination. The arbitrator ordered HHS to rein- state Pinsonneault, although not to ac- tive employment since her addiction is- sues were still a problem and she was unable to work safely. However, the reinstatement allowed Pinsonneault ac- cess to long-term disability benefi ts and to regain lost seniority. For more information see: • Hamilton Health Sciences Corp. v. ONA (Pinsonneault), 2013 CarswellOnt 17006 (Ont. Arb.).

• Cover