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In a recent Ontario case, Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, an arbitrator ordered a long-term care home to reinstate a registered nurse who was fired for misappropriating narcotics for her own use and for falsifying records.

Context

The Ontario Human Rights Code prohibits discrimination on the basis of disability, including adverse treatment linked to substance addiction. The Code imposes a duty on employers to take reasonable steps to accommodate the disability to the point at which the accommodation would pose an undue hardship for the employee. Such reasonable steps include, where there are reasonable grounds to believe, for the employer to inquire whether an employee is suffering from a disability, and to consider whether and how the disabled employee may be accommodated.

Facts

The employee in question was a registered nurse at a long-term care home. She was dismissed on grounds for theft of drugs and patient abuse. She admitted that she repeatedly withheld prescribed medication from patients so that she could, instead, inject herself with the medication. She also falsely recorded that she prescribed the medication to the patients in her care. Her addiction began when she was prescribed Percocet following several surgeries to remove kidney stones. She was later diagnosed with severe substance abuse disorder. As a result of her addiction, the employer terminated the nurse’s employment in September 2016 and also reported the event to the College of Nurses of Ontario. The CNO prohibited the nurse from practicing nursing until June 2017.

The Ontario Nurses Association requested that the nurse’s employment be reinstated. The Union argued that the employee’s actions were a result of her addiction and that her addiction obliged the employer to accommodate her. The Union contended that the employer breached its duty for several reasons. First, by failing to inquire into whether the employee is suffering from a disability since reasonable grounds to believe existed. Second, the Union indicated that the employer failed to provide accommodation to the employee and did not consider or give any thought to what steps could be taken to accommodate the grievor. Third, the employer failed to prove that it could not accommodate the grievor’s restrictions without undue hardship.

Judgement

The arbitrator, Larry Steinberg, allowed the grievance because he concluded that opioid disorder is a disease and that persons suffering from that disease have little or no control over their addiction. As such, the employee showed symptoms of her mental illness by her “compulsive behaviour and impaired judgement.” Therefore, the employer had a duty under the Code to accommodate the nurse’s drug addiction to the point of undue hardship.

The arbitrator further stated that the employer violated its duty to accommodate because it failed to give any “thought or consideration” to accommodation issues despite the troubling observations about the appearance and reports of the grievor. These observations and reports should have caused the employer to believe that a disability might be present.

The arbitrator was unsatisfied with the employer’s argument that the accommodation to reinstate the nurse into the workplace would amount to undue hardship. The arbitrator was unsatisfied because the employer had taken this position “without any analysis or thought” about what changes can occur in the workplace in order to accommodate the employee’s mental illness.

The arbitrator ordered that the grievor be reinstated immediately and that the grievor was entitled to compensation for any losses.

Takeaways

This decision shows that employers should take a proactive approach to accommodation issues by inquiring into the employee’s disability when there are reasonable grounds to do so. If an employee requires accommodation, the employer is expected to propose solutions and to make workplace changes in order to accommodate the disabled employee.

This decision may be considered troubling to some because it fails to account for the vulnerable patients whose interests may be compromised as a result of the employee’s potential misconduct. To avoid a decision similar to Sunnyside, employers should address a workplace issue carefully and differently than how the issue was addressed in Sunnyside. If you require more information or have questions relating to any of the above, please contact Toronto employment lawyers at Sultan Lawyers by telephone at 416-214-5111, by email at mlahert@sultanlawyers.com, or by filling out the form below.


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