A joint venture

By Jeffrey R. Smith

There’s been a lot of talk about the upcoming legalization of marijuana in Canada. Prime Minister Justin Trudeau made it clear during the election campaign that he was going to make the drug legally available and when his Liberal government took power, the ball (or papers) started rolling. Now it appears marijuana will become legally available from licenced dispensers in 2018.

There’s also been a lot of talk in employment law circles about how this will affect employers that have safety-sensitive workplaces and have concerns about intoxicated employees. If marijuana becomes more widely available, will it increase the likelihood of employees showing up to work under the influence or the physical presence of the drug at workplaces? These are issues that are cause for concern and may require action by employers.

However, marijuana has actually been legal in Canada since 2001 — at least for medicinal purposes. Individuals with medical conditions that can be helped by taking marijuana — whether smoked or ingested in other forms — are allowed to get licences to obtain the drug from certain providers who also must be licenced by the government. Over the years, there have been many cases where medical marijuana has been an issue for employers when it’s been discovered employees with some sort of medical disability are taking it.

An interesting aspect of medical marijuana and employee disability is whether it should be covered by benefits programs. A recent case before the Nova Scotia Human Rights Commission involved a worker who developed chronic pain, anxiety, and depression in the wake of a motor vehicle accident while working.

The worker tried various types of medication for his pain and anxiety, but they weren’t effective and had too many side effects. His doctor eventually prescribed medical marijuana for him and he obtained a permit from the government to use it. The marijuana turned out to be more effective in treating his symptoms than other medications.

The worker’s medical marijuana was initially covered by his employer’s motor vehicle insurer since it was tied to the accident, but he soon reached the cost limit of the coverage. He then applied to a private employee welfare fund that he had contributed to for coverage of the costs of the medical marijuana, but the fund’s board of trustees rejected his application because marijuana wasn’t on Health Canada’s list of approved drugs.

The worker applied again and supplied his prescription and information indicating the drug was necessary to treat his medical condition. However, his application was rejected a second time.

The commission found that the board of trustees discriminated against the worker because of his disability. Evidence showed other beneficiaries had been granted coverage for medically-necessary, prescribed medications — which the welfare plan specifically stated that it covered. The plan didn’t define what a drug was, so it didn’t specifically exclude marijuana, nor did it say a Health Canada approval was required. As a result, the worker was placed at a disadvantage from other beneficiaries because of the nature of his disability, and the board was aware of that disability, at least by the worker’s second application for benefits: see Skinner and Canadian Elevator Industry Welfare Trust Fund, Re, 2017 CarswellNS 203 (N.S. Human Rights Comm.).

So not only do employers need to be more aware of the coming legalization of marijuana when it comes to potential employee intoxication, they already should be aware of the status of medical marijuana as potentially a medication that may have to be covered under benefits plans. There are more and more stories coming out about the drug being the best way to manage symptoms of certain conditions, and if doctors are prescribing it, employers had better be ready to cover it as they do other medications — especially once the drug becomes legal for non-medical purposes as well.

Employers may be able to prevent employees from imbibing at work, but they may not be able to avoid supporting disabled employees from imbibing at home if it’s medically necessary.