Ever since Prime Minister Trudeau promised to legalize marijuana, employment law circles have been abuzz about how this will affect the workplace. With the drug set to become legally available from licenced dispensers next year, employers – and particularly those with safety-sensitive workplaces – have much to consider.
Marijuana has actually been legal in Canada for medical purposes for many years. Individuals with medical conditions that can be alleviated by taking the drug may get a prescription to obtain the drug from certain licenced providers.
This raises the question of whether medical marijuana should be covered under benefits programs. In a recent decision, arising from a union insurance fund’s denial of coverage for medical marijuana prescribed to a disabled worker, the Nova Scotia Human Rights Commission weighed in on this issue.
Gordon “Wayne” Skinner worked as an elevator mechanic at the Dartmouth, Nova Scotia office of ThyssenKrupp Elevator Canada, a Toronto-based elevator company. On August 13, 2010, Skinner was involved in a motor vehicle collision while at work. The injuries sustained led to chronic pain, as well as anxiety and depression. Skinner was unable to return to work and received permanent impairment benefits.
The physical and mental injuries Skinner suffered as a result of the accident were treated with conventional drugs for several years, but these were ultimately ineffective and caused him unpleasant side effects. He lawfully obtained a prescription for medical marijuana and received coverage under his employer’s motor vehicle insurance. When he reached the maximum under that insurance plan, Skinner approached the Board of Trustees of the Canadian Elevator Industry Welfare Fund, the body responsible for the management of the plan that provided health benefits for those working in the unionized sector of the Canadian elevator industry.
The Trustees denied Skinner’s request.
After two unsuccessful appeals, Skinner filed a formal complaint with the Nova Scotia Human Rights Commission under the Human Rights Act, alleging discrimination in the provision of services on account of physical and mental disability.
In a decision issued on January 30, 2017, a Board of Inquiry of the Nova Scotia Human Rights Commission held that the Trustees’ refusal to exercise their discretion to extend coverage for medical marijuana amounted to a violation of the Act.
While it acknowledged that a benefits plan need not cover all drugs prescribed to a person with a disability, the Board concluded that Skinner had established that the denial of coverage for medical marijuana amounted to prima facie discrimination. The Board noted that Skinner provided extensive evidence to the Trustees both of the positive effect of medical marijuana on his functionality and emotional well-being and of the substantial disadvantage that non-coverage had on him and his family. However, unlike other beneficiaries under the plan, Skinner’s request for coverage of this medically-necessary drug, prescribed by his physician, was rejected.
Once Skinner established prima facie discrimination, the Trustees had the legal onus to provide a non-discriminatory justification for their decision to demonstrate that they accommodated the complainant up to the point of undue hardship. The Board held that the Trustees failed to do so. They provided no information on how an extension of coverage, either on a case-by-case basis or as an amendment to the benefits plan, would impact either the plan’s premiums or financial sustainability.
This decision demonstrates the growing acceptance of medical marijuana as a medically necessary drug and sets a precedent on benefits coverage of medical marijuana as it relates to disability. Not only do employers need to be cognizant of the coming legalization of marijuana and its potential effect on their employees and workplaces, they must be aware of the status of medical marijuana as a medication that may have to be covered under benefits plans. With more and more physicians prescribing marijuana to manage the symptoms of certain conditions, employers must be prepared to cover it as they do other medications.
Lessons for Employers
Employers should contact their Insurers to determine whether medical marijuana is covered under their benefits plans, and if so the circumstances under which such coverage would be available to their employees. Caution should be exercised to ascertain that the terms of the Insurance Policy do not breach the Human Rights legislation failing which the Employer may be responsible. Employers seeking advice from an Employment Lawyer is critical to protecting their interests and pocket book.
Lessons for Employees
Employees who require medical marijuana may be entitled to benefits coverage for this purpose. Finding out whether their Employer offers benefits coverage and under what circumstances is important. Advice in communicating the Employee’s circumstances requiring medical marijuana to the Employer, or if the Insurer refuses to provide benefits coverage, is well to be sought from an Employment Lawyer.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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