A recent Ontario arbitration involved a grievance alleging that the denial of reimbursement for medical marijuana under a group health plan breached the Collective Agreement, and is a helpful reminder that despite the attention medical marijuana has received in recent years, there are realistic limits and issues for employers to deal with in claims associated with medical marijuana.
This party’s partner had a medical document from a licensed physician, advising that she take 3 grams of dried marijuana per day for a period of 6 months to help her cope with two medical conditions. This recommended dosage of marijuana was purchased from a licensed producer, and a receipt was issued for her records at that time.
The employer’s Collective Agreement set out the following requirement for reimbursement for drugs under its group health plan:
“Drug claims must show the prescription number, name, strength, and quantity of the drug plus the drug identification number.” Health Canada has not designated dried marijuana with a drug identification number (“DIN”).
Accordingly, the group health plan administrator denied the reimbursement claim because the claim form did not contain a DIN, as required by the Collective Agreement.
The union grieved the denial of reimbursement as being contrary to the Collective Agreement, the Ontario Human Rights Code, and the Canadian Charter of Rights and Freedoms.
The arbitrator reviewed the prevailing legislative framework related to medical marijuana and affirmed that Health Canada, through the Food and Drug Act (“FDA”), sets the general framework for the authorization of drugs for sale in Canada.
If Heath Canada, upon reviewing and testing the submitted evidence of a drug manufacturer, is of the view that the overall benefits of the drug outweigh its risks, the product is authorized for sale in Canada, and assigned a DIN.
The arbitrator reviewed the explanation provided by the Ministry of Health with respect to why dried marijuana has not been designated with a DIN, which in essence, is that Canadians who require medicinal marijuana have been found to have a right of reasonable access, however, this does not mean that the Ministry has to certify dried marijuana as a therapeutic or healing product.
The arbitrator reviewed the impugned clause in the Collective Agreement and, applying the principles of Collective Agreement interpretation, determined that it was the parties’ intention that a DIN was a mandatory element of any claim, acting as verification that the drug for which reimbursement is being sought has the “stamp of approval” of Health Canada, and is indeed an approved drug under the FDA.
The arbitrator did not hear arguments on the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms, and that issue has been left on the table for another day.
WHAT EMPLOYERS NEED TO KNOW
Issues associated with medical marijuana and the workplace are popping up with increased frequency. This decision demonstrates that medical marijuana and the issues related thereto often require situation-specific responses from employers. While this decision provides support for the argument that denying a reimbursement claim for medical marijuana may be justified in certain circumstances, the decision also suggests that medical marijuana may be eligible for reimbursement in cases involving broader language in a Collective Agreement or group health plan.
In other words, not all marijuana is treated equally. It is worth noting that certain drugs containing cannabis have been approved for sale and designated with a DIN by Health Canada. These products include a buccal spray containing extracts of cannabis, a capsule containing synthetic THC, and a capsule containing a synthetic cannabinoid.
When dealing with an employee who has a prescription for medical marijuana, it is important to work with the employee to make certain that a prescription is a form of marijuana that will have a minimal impact on the employee’s ability to perform their duties, while still meeting the employee’s therapeutic needs.
When confronted with an issue related to medical marijuana and the workplace, employers should seek case-specific legal advice.