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WCB to employers: You need policies before Canada legalizes marijuana

Canada legalizes marijuanaOn March 21, 2017, at a breakout session during a convention on the topic of Canada legalizing marijuana, a spokesperson for the Saskatchewan Workers’ Compensation Board says employers should have policies in place before Canada legalizes marijuana, because it could affect safety on the job.

In addition to examining this statement by Saskatchewan’s WCB, this article also discusses if medical marijuana is a covered medical expense under workers’ compensation across Canada.

When Canada legalizes marijuana

The Federal government has indicated that it plans to introduce marijuana legislation by April 20, 2017 with an in force date of July 1, 2018, but added that current laws haven’t changed.

A Task Force [Task Force on Cannabis Legalization and Regulation] has completed its report on the design of a new system to legalize, strictly regulate and restrict access to cannabis. This advice is what will be considered by the Government of Canada as legislation is being developed.

As stated in an earlier post on Slaw, “Cannabis impairment in the workplace is not a new issue. However, questions were raised about whether the legalization of cannabis might increase use and how that would affect workplace policies. As affirmed by the Task Force, drug and alcohol use or impairment in the workplace can pose a danger to everyone in the workplace, including the person who is impaired.”

One of the recommendation of the Task Force was to facilitate and monitor ongoing research on cannabis and impairment, considering implications for occupational health and safety policies. In addition, work with provinces, territories, employers and labour representatives to facilitate the development of workplace impairment policies.

Therefore the Saskatchewan Workers’ Compensation Board warning is not too far-fetched.

What should a workplace marijuana policy include?

The need for the policy stems from the fact that medical marijuana or the recreational use of marijuana can cause people to be impaired in the course of employment, and put workers and the public at risk. Employers are also struggling to enforce a substance-free workplace program with the increasing use of marijuana as an acceptable treatment for pain management, and compensable by workers compensation (depending on the jurisdiction).

The Workers’ Compensation Board adds that the policy should include ways to test workers for marijuana; penalties for employees who use marijuana at or before work, or consider allowing the drug at work.

However, this type of policy should not go against established law as indicated in the Slaw post. “The cases of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd and R. v. Smith, among others, confirmed that Canadians have a constitutional right to use medical marijuana and that employers must balance their interest in mandatory drug and alcohol testing to produce a safe workplace with employee privacy interests. Only when workplace requirements outweigh privacy interests can an employer impose drug and alcohol rules with disciplinary consequences. As a result, mandatory workplace drug testing is not allowed unless an employer can establish a substance abuse problem, even if the workplace is one with heightened safety concerns.”

It is important for employers to efficiently and precisely communicate the employee’s entitlements and obligations with regards to using, or being under the influence of, marijuana in the course of employment. Furthermore, employers and HR must ensure that their policies do not infringe on the constitutional right to use recreational (when legalized) and medical marijuana and privacy rights of employees.

Is medical marijuana covered under WCB?

I thought it would be interesting to see if the Workers’ Compensation Board is currently covering the use of medical marijuana as a medical expense for workers who suffer work-related injuries or illnesses.

The Workers’ Compensation Board provides insurance and compensation for workers and employers. When workers suffer work-related injuries or illnesses, they can submit a claim to the Workers’ Compensation Board for coverage of their medical expenses, including any required medication.

Thus far, the medical conditions that have triggered workers’ compensation claims test the boundaries of medical marijuana as being compensable are chronic or severe pain – not critical illnesses like cancer or glaucoma, or HIV/Aids. Because of this, many interested stakeholders (Workers’ Compensation Board, case managers, employers, health practitioners, insurance companies, among others) are saying if the Workers’ Compensation Board funded the use of marijuana for the treatment of chronic or severe pain it would create a bad precedent. More doctors would find it acceptable treatment for pain management, and there would be an increase in questionable or fraudulent workers’ compensation claims.

To this date, the Alberta Workers’ Compensation Appeals Commission ruled that the worker’s medical marijuana can be covered by workers’ compensation. The Commission explained that workers’ comp provides or pays for “any reasonable and necessary medical aid” to treat compensable injuries or alleviate the effects of such injuries. It added that workers’ comp may cover, on a case-by-case basis, “non-standard” medical aid provided that certain conditions were met.

The Saskatchewan Workers’ Compensation Board’s policy does not include the use of medical marijuana, even if a doctor prescribes it. Saskatchewan Workers’ Compensation Board has refused to pay for the pot saying it’s against Policy 10/2011, which states: “The WCB will not reimburse the costs of obtaining, growing, or using medical marijuana (i.e. the smoked form).” However, in a 2012 case, Saskatchewan Court of Queens Bench ruled that the Workers’ Compensation Board can pay for an injured workers medicinal marijuana. The judge said that a special tribunal was held to consider the matter erred. It should have considered the case on its merits, rather than just pulling out the Workers’ Compensation Board policy book. It should have considered the case on its merits, rather than just pulling out the Workers’ Compensation Board policy book. The case was referred back for a new hearing.

However, in British Columbia, the BC Workers’ Compensation Appeals Tribunal ruled that the worker’s medical marijuana wasn’t covered. The Tribunal explained that workers’ comp covers any medical or other treatment that it considers “reasonably necessary” to provide relief from or alleviate the effects of a compensable injury. There’s no policy on medical marijuana. Instead, the Workers’ Compensation Board relies on the recommendation of the Evidence Based Practice Group, which reported in June 2006 that there was no evidence on the effectiveness of cannabis on treating chronic non-malignant pain (although it also said workers who had compensable cancer or multiple sclerosis may be considered for medical marijuana, with the input of a senior medical advisor). In the BC case, the Tribunal found that the evidence didn’t support a conclusion that the use of medical marijuana was medically necessary to alleviate the effects of the worker’s compensable condition.

Quebec and Ontario treat medical cannabis like other prescription drugs in covering at least some of its costs for patients. In 2005, the Workers’ Compensation Board in Quebec was ordered by the Quebec Superior Court to pay for medical marijuana as it would any other prescribed drug. In 2007, Ontario was ordered to do the same on a case by case basis.

As we can see, decisions on the topic are not consistent nor the research conclusive enough to answer the question on the validity of marijuana for medicinal purposes, including pain management. It will be interesting to review when Canada legalizes marijuana.

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Yosie Saint-Cyr

Managing Editor at First Reference Inc.
Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 15 years, Yosie has been the Managing Editor of the following publications, Human Resources Advisor, Human Resources PolicyPro, HRinfodesk and Accessibility Standards PolicyPro from First Reference. Yosie is one of Canada’s best known and most respected HR authors, with an extensive background in employment and labour across the country. Read more
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