A recent case from Nova Scotia illustrates that as laws and social attitudes concerning marijuana change, employers may be burdened with previously unexpected costs.
As Canada moves toward decriminalization by July 2018, the stigma associated with lawful use appears to be diminishing. Even before the Liberals ran on a platform to decriminalize, Health Canada estimated that the number of registered medical marijuana users would increase 10-fold – to 450,000 people by 2024.
The case
In Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, the Nova Scotia Board of Inquiry (the “Board”) found that an employee was discriminated against when the trustees of his employee benefit plan refused to cover his medical marijuana “prescription”.
The employee was an elevator mechanic who had been involved in a car accident while working. He suffered from chronic pain, anxiety, and depression after the accident, and had used prescription narcotic pain medication and anti-depressants for several years with little effect. He eventually obtained the necessary license and prescription to obtain medical marijuana[1], and saw a drastic improvement in his symptoms.
The employee approached his employee benefit plan about covering his prescription marijuana. The benefits plan only covered drugs “obtained by prescription” from a licenced pharmacist, physician, or other authorized healthcare practitioner. His request was denied by plan trustees because marijuana is not covered under the Food and Drug Act, and does not have a Drug Identification Number.
The Board noted that although medical marijuana is not listed in the Food and Drug Act, it can be “prescribed” by physicians. Further, the Board noted that the trustees had discretion under the plan to grant coverage for drugs not included in the plan.
The Board held that the plan created a distinction; the employee was denied his special request for coverage of his medically-necessary prescription drug, while such requests were granted to other beneficiaries in regard to other drugs. This created a disadvantage for the employee, as his chronic pain had gone unmanaged.
The Board determined that the employee’s disability was a factor in the trustees’ decision to deny his request for coverage, and as such a prima facie case of discrimination was made out. The respondent failed to establish that covering the medical marijuana would lead to undue hardship. As such, the Board ordered the respondent to provide coverage for the employee’s medical marijuana.
The takeaway
This case illustrates that as societal attitudes change, a greater proliferation of medical marijuana may have far-reaching, and sometimes unexpected effects on Canadian workplaces. Employers should stay abreast of changes to the law, and review existing policies to keep pace.
To learn more about the workplace issues surrounding medical marijuana, register to Learn the Latest® at the Ontario Employment Law Conference.
[1] Prior to 2014, a license was required. Presently, only a doctor’s prescription is required.
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