Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Hospital discriminated against nurse who forged prescriptions Nurse's misconduct was to obtain drugs to feed addiction; angry doctors swayed hospital's decision not to pursue accommodation BY JEFFREY R. SMITH AN ONTARIO hospital discriminated against a nurse who had a drug addiction when it fired her for forging prescriptions for herself, an arbitrator has ruled. Jennifer Mee was a registered nurse in the specialized mental health unit at the Windsor Regional Hospital in Windsor, Ont. Mee was initially hired in 2006 and the mental health unit was her third depart- ment at the hospital. On March 14, 2013, one of the hospital's physicians had been advised that prescrip- tions for narcotics for Mee had been written in his name and given at two different phar- macies. e director of Mee's unit notified the hospital's director of human resources and a telephone call was arranged with Mee and the bargaining unit president. Mee denied writing the fraudulent pre- scriptions and said she was being slandered, which she said had happened in a previous incident where she had been accused of stealing drugs from the emergency depart- ment — for which she had been suspended for three days without pay. Mee then spoke privately with the bargaining unit president and denied any involvement. ree physicians in total had their names forged for prescriptions, and they indi- cated they were angry and felt their trust had been broken. ey also said their pro- fessional relationship with Mee would be negatively affected if Mee 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 identified in a video at one of the pharmacies as presenting a forged prescrip- tion. e hospital determined Mee had taken blank prescription forms and forged the phy- sician's signature in order to get the narcotic. Since Mee didn't admit responsibility for the prescriptions and didn't indicate she had any addiction problems, the hospital decided to terminate her employment on March 28. e police became involved and the union told Mee not to say anything to incriminate herself until she obtained legal advice. In the termination letter, the hospital de- nied the sick leave due to the termination. When the union learned of the hospital's intent, the labour relations officer contacted the HR director to inform her Mee was off work due to her disability and requested benefits to continue to help Mee with her recovery. e hospital agreed to keep cov- erage for program treatment purposes only for three months, but felt Mee knew exactly what she was doing along with the conse- quences, so any health issues she had should not be causally connected to her misconduct A few days after her termination, Mee was admitted into the detox unit of the hospital, which was adjacent to the mental health unit and was under the same director. She was there for five days before going to an addiction centre with a diagnosis of opiate dependence. Mee was charged with uttering a forged document, to which she pleaded guilty and was given a conditional discharge in July 2013. She was also placed on probation for 12 months, during which she was banned from purchasing, possessing or consuming drugs except for a medical prescription. Union, employee claimed misconduct was caused by employee's addiction e union filed a grievance on behalf of Mee, arguing the hospital violated the On- tario Human Rights Code and the collective agreement by discriminating against Mee and failing to accommodate her addiction, which was a disability. Mee testified she began abusing drugs in 2008 following a back injury, but initially thought it was just recreational use, not an addiction. She transferred to the mental health unit from the emergency department because she felt it would help her control her problem, since drugs weren't as readily available there. She admitted to taking med- ication from the hospital and when she was confronted with it in 2009, she lied about it. Mee claimed she was ashamed for forg- ing the prescriptions and her addiction controlled her life by the time she did it. She said she denied forging the prescriptions because she was afraid about what would happen to her. Mee completed the rehabilitation pro- gram on May 21 and was evaluated by a doc- tor specializing in substance abuse treat- ment and addiction. He reported Mee was well enough to return to work as a registered nurse with certain conditions. e arbitrator found it was "more likely than not" that the hospital was aware Mee was sick and had addiction issues. It wasn't able to get information from Mee because of her legal issues, but didn't properly examine her request for sick leave after the adminis- trative suspension and before the investiga- tion was complete. "It was incumbent upon the hospital to inquire further and to discharge its duty to accommodate (Mee) to the point of undue hardship by forestalling its decision until further enquiries were made of the union and (Mee)," said the arbitrator. e arbitrator noted that the hospital had accommodated other nurses who had diverted drugs meant for patients due to ad- dictions, and forging prescriptions wasn't really any different. e main difference in this case was that there were physicians involved who were angry and felt violated from the forgeries. "When addicted nurses are accommo- dated by being given an opportunity to seek treatment for their illness and returned to work…, trust has to be rebuilt between the nurse and the hospital and between the nurse and their co-workers," said the arbi- trator. "I can see no reason why physicians at the hospital would not be as capable of rebuilding such trust." e arbitrator found that Mee was "ex- traordinarily committed to regaining her health," as evidenced by her immediate admission into detox and then a treatment centre. After she was terminated, she ac- knowledged her addiction and was re- morseful. Along with the addiction 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 to investigate whether or not Mee could be accommodat- ed in employment. For more information see: • Windsor Regional Hospital and ONA (Mee), Re, 2015 CarswellOnt 5011 (Ont. Arb.). Hospital agreed to extend benefits to help with employee's recovery

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