Company Not Required to Cover Medical Cannabis

This article is an update to a previous article on the Cannabis at Work Website titled “Denial of Cannabis Coverage Found to be Discriminatory”.

Background

Skinner was an elevator mechanic who suffers from chronic pain and depression following a work-related motor vehicle accident. He applied for coverage for his prescribed medical cannabis through his benefits plan, the Canadian Elevator Industry Welfare Trust Plan. This plan provides health and related benefits for employees and former employees working in the unionized sector of the Canadian elevator industry.

The Welfare Trust denied Skinner coverage. They stated that medical cannabis has not been approved by Health Canada and does not have a drug identification number.

The Nova Scotia Human Rights board in this case found the denial of coverage of medical cannabis under the Welfare Trust benefits, amounted to prima facie discrimination. The Welfare Trust was ordered to cover Skinner’s medical cannabis up to and including the full amount of his most recent prescription. The Welfare Trust appealed this decision.

The Appeal

The Nova Scotia Court of Appeal heard the appeal in October 2017. The two main issues were (1) did Human Rights Board apply the test for prima facie discrimination correctly and (2) did discrimination occur based on Mr. Skinner’s disability.

Although the Board of Trustees acknowledged that medical cannabis was the most effective treatment for Mr. Skinner they still denied his coverage as the benefits plan dictated that, for a drug to be covered, it had to be approved by Health Canada and assigned a Drug Identification Number or DIN. Currently in Canada medical cannabis is not considered an approved drug and has not been assigned a DIN. The court found that this was a reasonable limitation on benefits coverage.

In refusing to cover medical cannabis for Mr. Skinner, the court found that this did not differentiate him from others suffering from chronic pain, as no beneficiary under the plan would receive coverage for medical cannabis. Therefore, the plan’s exclusion of medical cannabis was not based on Mr. Skinner’s disability. Without the connection between Mr. Skinner’s disability and the denial of coverage, the Human Right’s board test for discrimination was legally unreasonable.

Decision

Based on this information the Court of Appeal found that benefits plans do not have to cover everything and the limitation on coverage of medical cannabis did not constitute discrimination.

Even though this decision could be seen as a set-back for medical cannabis patients, we continue to see forward movement with the coverage of medical cannabis on benefit plans. Employers will be faced with the decision to cover medical cannabis as the number of medical cannabis prescriptions rapidly increases. This may not be an easy decision as cannabis still carries with it stigmas and stereotypes from decades past but it’s important to look at the options available and have an open dialogue with your benefits provider to determine what is right for your organization.