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Denial of coverage for medical marijuana under employee benefit plan found to be discriminatory

medical marijuanaIn 2010, Mr. Skinner was involved in a motor vehicle accident while working, and subsequently developed a physical and mental disability. After exhausting conventional drug options to treat his symptoms, Mr. Skinner’s physician prescribed medical marijuana. The medication provided him with some relief from his chronic pain and improved functionality. Mr. Skinner requested coverage for the medical marijuana under the Canadian Elevator Industry Welfare Trust Plan (“Plan”), a private benefit plan designed to provide health and related benefits to union employees in the elevator industry.

The Plan’s Trustees denied the request on the basis that: (i) medical marijuana did not have a drug identification number (“DIN”) because it was not approved by Health Canada, and (ii) Mr. Skinner’s medical expenses ought to be covered by a provincial medicare plan because his disabilities resulted from a compensable workplace accident. Mr. Skinner filed a complaint under the Nova Scotia Human Rights Act alleging discrimination in the provision of services on account of physical and mental disability.

In Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, the Nova Scotia Human Rights Commission Board found the Trustees’ justifications for denying Mr. Skinner’s request for coverage to be “wholly inadequate.” The Plan provided coverage for “reasonable and customary charges incurred for medically necessary drugs and medicines” obtained legally by prescription, and did not require a DIN as a condition of coverage.

The Board determined the Trustees’ decision to deny Mr. Skinner’s request for coverage was discriminatory under the Act. The evidence demonstrated that medical marijuana was medically necessary in Mr. Skinner’s case, and the terms of the Plan did not exclude medical marijuana coverage. The Trustees’ denial of Mr. Skinner’s request was inconsistent with the purposes of the Plan, and had the adverse effect of depriving Mr. Skinner of comparable coverage provided to other beneficiaries. Further, the Trustees provided no evidence of undue hardship. The Board noted that the Trustees provided no evidence that granting an employee’s request for coverage of medical marijuana on a case-by-case basis (or any other basis) would cause an increase in premiums or threaten the financial viability of the Plan. As a result, the Board ordered (as an interim measure) that the Trustees immediately commence providing coverage for medical marijuana to the Complainant.

Given the exponential increase in legal marijuana prescriptions in Canada, and the media attention garnered by decisions like Skinner, it is likely that both employers and benefit plan administrators will see a growing number of requests for coverage for prescription marijuana. While the Skinner decision does not mean that medical marijuana must be covered under every private benefit plan, it does demonstrate the necessity of considering human rights obligations when deciding how to respond to a request for such coverage. As stated by the Board in Skinner:

[1]        Employee benefit plans are not required to cover the sun, moon, and the stars. However, where an employee with a disability requests coverage that is consistent with the purpose of a plan and comparable to coverage provided to other beneficiaries, more is required from a plan administrator than simply an assertion that its hands are tied by its policy and forms. In the absence of evidence that extending coverage would unreasonably alter the plan premiums or risk its financial sustainability, non-coverage of a medically-necessary drug may amount to discrimination…

By: Monique Ronning, Associate

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Employer Advisor, McCarthy Tétrault LLP

Employment and labour lawyers at McCarthy Tétrault LLP
McCarthy Tétrault through their Employer Advisor blogs offers their perspectives on the latest legal developments applicable to the workplace. It provides their insights on legislative and regulatory developments, as well as new case law, while providing practical tips for employers and their human resources professionals when managing the workforce. McCarthy Tétrault is a Canadian law firm that delivers integrated business law, litigation services, tax law, real property law, labour and employment law nationally and globally. Several of their blog posts will be republished with permission on First Reference Talks. Read more
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