Canadian HR Reporter

CANADIAN HR REPORTER May 18, 2015 EMPLOYMENT LAW 5 Jeff rey Smith Legal VieW produit : Group retirement savinGs ForMAt : 9,625'' x 7'' To learn more, watch a short video at yourwayplainandsimple.com. Desjardins insurance refers to Desjardins Financial security Life assurance Company. proud partner of Your way, plain and simple ® 's E 3 approach evolves. Our new E 3 nergy Module fast forwards employee engagement with their retirement plan. Entice • Encourage • Engage ACCEL ER ATE PL AN ENG AGEMENT Hospital discriminates against nurse Angry doctors swayed hospital's decision about worker with addiction: Arbitrator An Ontario hospital discriminated against a nurse who had a drug addiction when it fi red her for forging prescriptions for her- self, an arbitrator has ruled. Jennifer Mee was a registered nurse in the specialized mental health unit at the Windsor Re- gional Hospital in Windsor, Ont. Mee was initially hired in 2006 and the mental health unit was the third hospital department she'd worked in. On March 14, 2013, one of the hospital's physicians was told pre- scriptions for narcotics for Mee had been written in his name and filled at two different pharma- cies. But Mee denied writing the fraudulent prescriptions and said she was being slandered. Three physicians had their names forged for prescriptions and they indicated they were an- gry and felt their trust had been broken. ey also said their pro- fessional relationship with Mee would be negatively aff ected if she returned to work at the hospital. e hospital suspended Mee with pay while it investigated. Mee applied to the employee health department for sick leave — providing a doctor's note — and signed up for treatment at an addiction centre. Mee was identifi ed at one of the pharmacies as presenting a forged prescription. e hospital deter- mined Mee had taken blank pre- scription forms and forged the physician's signature in order to get the narcotics. Since Mee didn't admit responsibility or indicate she had addiction problems, the hospital terminated her employ- ment on March 28. e police also became involved. In the termination letter, the hospital denied the sick leave due to the termination. e labour re- lations offi cer contacted the HR director to inform her Mee was off work due to her disability and requested benefi ts to continue to help Mee with her recovery. e hospital agreed to keep cover- age for program treatment pur- poses for three months, but felt Mee knew what she was doing, along with the consequences, so any health issues she had should not be causally connected to her misconduct. A few days after her termina- tion, Mee was admitted into the detox unit of the hospital. She was there for fi ve days before going to an addiction centre with a diagno- sis of opiate dependence. Mee was charged with utter- ing a forged document, to which she pleaded guilty, and was given a conditional discharge in July 2013. She was also placed on pro- bation for 12 months and banned from purchasing, possessing or consuming drugs except with a medical prescription. e union fi led a grievance on behalf of Mee, arguing the hospi- tal violated the Ontario Human Rights Code and the collective agreement by discriminating against Mee and failing to accom- modate her addiction, which was a disability. Mee testifi ed she began abus- ing drugs in 2008 following a back injury and she transferred to the mental health unit to better control her problem, since drugs weren't as readily available there. She admitted to having previously taken medication from the hospi- tal and when she was confronted back in 2009, she lied about it. Mee claimed she was ashamed of her actions and her addiction controlled her life by the time she did it. She said she denied forging the prescriptions because she was afraid of what would happen. Mee completed the rehabilita- tion program on May 21 and was evaluated by a doctor specializing in substance abuse treatment and addiction. He reported Mee was well enough to return to work, with certain conditions. Arbitrator weighs in e arbitrator found it was "more likely than not" the hospital was aware Mee had addiction issues and it wasn't able to get informa- tion because of her legal issues. However, it didn't properly exam- ine her request for sick leave after the administrative suspension and before the investigation was complete. "It was incumbent upon the hospital to inquire further and to discharge its duty to accommo- date (Mee) to the point of undue hardship by forestalling its deci- sion until further enquiries were made of the union and (Mee)," said the arbitrator. e hospital had accommodat- ed other nurses with addictions who had diverted drugs meant for patients, and forging prescrip- tions wasn't really any diff erent, said the arbitrator. e main dif- ference here was there were phy- sicians involved who were angry and felt violated by the prescrip- tion forgeries. "When addicted nurses are ac- commodated by being given an opportunity to seek treatment for their illness and returned to work… trust has to be rebuilt be- tween the nurse and the hospital and between the nurse and their co-workers," said the arbitrator. "I can see no reason why physicians at the hospital would not be as capable of rebuilding such trust." Mee was "extraordinarily com- mitted to regaining her health," as evidenced by her immediate admission into detox and then a treatment centre, said the arbitra- tor. After she was terminated, she acknowledged her addiction and was remorseful. Along with the doctor's report, the prognosis for a successful return to work was good, said the arbitrator. e hospital was ordered to co- operate with Mee and the union was to investigate whether or not Mee could be accommodated in employment. For more information see: • Windsor Regional Hospital and ONA (Mee), Re, 2015 Carswell- Ont 5011 (Ont. Arb.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@ thomsonreuters.com or visit www. employmentlawtoday.com for more information.

• Cover