Canadian HR Reporter

CANADIAN HR REPORTER March 6, 2017 8 NEWS Initially, the marijuana was covered by his employer's ve- hicle insurer but after a couple of years, Skinner had reached the maximum limit of $25,000. So, in May 2014, he asked the board of trustees of the Canadian Elevator Welfare Trust Fund — who are re- sponsible for management of the Canadian Elevator Industry Wel- fare Trust Plan, which provides health and related benefits — for coverage. But the trustees denied Skin- ner's request — three times — be- cause medical marijuana has not been approved by Health Canada under the Food and Drugs Act, so it does not have a drug identifica- tion number (DIN), and Skinner's injuries were the result of a com- pensable workplace accident, so it said any medical expenses should be covered by the provincial medicare plan. So, in October 2014, Skinner filed a formal complaint with the Nova Scotia Human Rights Com- mission alleging discrimination in the provision of services on ac- count of physical and mental dis- ability. And, ultimately, the board agreed. Labour arbitration considerations In his decision, board of inquiry chair Benjamin Perryman went over several reasons why a la- bour arbitrator "could reasonably have found the trustees' decision to be in non-compliance with the Welfare Plan and collective agreement." For one, the plan stated pre- scription drug benefits were those "obtained only by prescription" (such as medical marijuana), and it did not expressly limit coverage to drugs possessing a DIN or limit the definition of "drug" to only Health Canada-approved drugs. e trustees also claimed Skin- ner's request was not covered be- cause he had not established the marijuana was medically neces- sary. But the plan did not define "medically necessary" and since the marijuana was prescribed for pain management, "it seems there is a prima facie support for its medical necessity, owing to the fact that conventional prescrip- tion pain management drugs are normally eligible for coverage," said Perryman. e Welfare Plan also granted the trustees broad authority to construe and alter the plan as needed, which could be a case- by-case change or a permanent change, he said. So they could interpret its terms "in a way that would have made medical marijuana an eligi- ble drug, to approve coverage for medical marijuana on a case-by- case basis even though it was not ordinarily covered, or to change the Welfare Plan to make medi- cal marijuana an eligible drug. is authority is constrained only by the limitation that any such changes must be economically sustainable." Discrimination concerns However, the human rights board did not have the jurisdiction to de- cide if the trustees were in compli- ance with the plan and collective agreement. But it did have juris- diction to review the trustees' decision to make a case-by-case decision or modify the plan, said Perryman. "e question before the board is whether the exclusion of cov- erage for medical marijuana un- der the Welfare Plan and/or the trustees' refusal to exercise their discretion to alter the Welfare Plan amounted to a violation of the (Human Rights) Act." In looking at whether the plan's exclusion of coverage, and the trustees' refusal to extend cover- age, amounted to a violation of the human rights act, the first step was to determine the purpose of the plan, and the second step was to compare the benefits allocated to employees for the same pur- pose, said Perryman. e legal purpose of the plan was to provide benefits to benefi- ciaries, in a way that was efficient, economical and sustainable. But the trustees failed to establish that coverage would result in undue hardship. "ere was no evidence pre- sented to suggest that premiums would have to be increased or that the financial viability of the plan would be threatened," he said. e concept of "medical neces- sity" also has relevance to the hu- man rights analysis, he said, find- ing medical marijuana was medi- cally necessary for Skinner, citing medical experts and linkages between the usage and improved functionality, while the under- management of his chronic pain had a severely negative impact on him and his family. And while the trustees claimed Skinner was not treated any dif- ferently than any other beneficia- ry, the plan's exclusion of medical marijuana had the substantive effect of treating the employee differently. "Whereas some beneficiaries receive coverage for their medi- cally necessary prescription drugs by special request, (Skinner's) special request for a medically necessary prescription drug is ex- cluded," he said. "e exclusion of coverage resulted in a burden or disadvantage for (Skinner)." e test for discrimination re- quires a complainant's disability be a factor in, or connected to, a policy or decision, said Perryman. "In my view, this arguably oc- curred at the time the Welfare Plan was created or at the time the complainant applied for cov- erage of medical marijuana, but it definitely occurred at the time he appealed the denial of coverage and requested accommodation," he said. "is discrimination was non-direct and unintentional." In the end, the trustees were told they must begin providing coverage of medical marijuana for Skinner and this coverage will continue until "the parties are able to reach an agreement regarding remedy that has been finalized by the board… or an appropriate court has ordered otherwise." Implications for employers e decision does not mean all private or public employee ben- efits plans are required to cover medical marijuana or any other drug, said Perryman. "Not all distinctions will be dis- criminatory. e foregoing analy- sis was dependent on the circum- stances of this case," he said. "While the board accepts that benefits plans cannot cover the sun, moon and the stars, consider- ation of whether non-coverage of a particular drug, for a particular person, amounts to discrimina- tion does not mean that a benefits plan will immediately be required to cover all drugs prescribed to a person with a disability. Such rea- soning is simplistic and ignores the complexity of human rights jurisprudence." While Perryman looked at other issues, his purpose was to look at this particular complaint, this particular plan and this par- ticular human rights act — not take a global view, said Kimberly Franklin, senior legal counsel at the Nova Scotia Human Rights Commission in Halifax. "A lot of the cases that have been argued have taken that ap- proach, rather than narrow it down to the actual individual or persons who are complainants… that's where the argument starts to fail because the purpose of the plan was not for the sole benefit of this person, but it was to supple- ment care." Down the road, other tribunals or hearing situations are going to have to look at the basic facts spe- cific to each case, such as the basic disability presented, the person's needs and the plan involved, she said. "I don't think this would be a cry for all insurance plans to go and start revamping their plans because this was the first look at a case like this from a very nar- row perspective, instead of the broader perspective of attacking the plan without the person." e takeaway from this deci- sion is employers or benefit plan administrators have to look at each case on a case-by-case basis, said Courtney Barbour, a lawyer at Barteaux Durnford in Halifax. "Under the language of the plan, (the trustees) had the ulti- mate discretionary authority to construe how the plan was ap- plied or to change the plan as needed to meet its purpose," she said. "There's always a balance between maximizing the benefits it offers to beneficiaries, and they have to balance that with allowing for economic sustainability of the plan." e trustees failed to establish there was a non-discriminatory justification for their decision to deny coverage, she said. "ey argued that the coverage would end in undue hardship for the plan, that it was going to have a substantial financial impact to premiums, but they didn't provide the evidence to show that." When somebody seeks accom- modation, employers and plan administrators have to consider their duty is to accommodate and whatever decision they make isn't going to be discriminatory, said Barbour. "ey can't simply throw their hands up and say, 'We can't do that.' If they're making a deci- sion, they need clear evidence to show that they're making this decision and justifying something that may have been prima facie discriminatory." It's typical in many benefit plans to see caps on coverage, or to only pay for the generic drug instead of the brand name drug, "but they do have the discretion to hear if an employee comes on a case-by- case basis seeking coverage for something that's not explicitly covered in the plan," she said. "ey always have to turn their mind to 'What's the purpose of the plan and in making our decision to deny coverage for something, is this going to have an adverse effect on the individual? Is this going to deprive that employee of something that's medically neces- sary, prescribed by physicians?'" Generally, plan sponsors have not been overrun with requests for coverage when it comes to medical marijuana. But if some- one does come forward, employ- ers have been relying on exclu- sions or limitations around the DIN, said Karen Millard, a senior consultant at Willis Towers Wat- son in Toronto. "When they've explained that to the plan member, the plan member has said, 'Well, fine.' ere's been no further concern or pushback from the plan mem- ber on that interpretation." at being said, plan sponsors have expressed concern about what should happen if a plan member is in dire circumstances, requesting coverage, she said. And one of the big impacts of the Nova Scotia case is to show there can be times where a plan sponsor should consider the situation on a case-by-case basis. Going forward, it's about look- ing at what the prior authorization process should look like around medical marijuana, and in what circumstances it should be cov- ered, said Millard. "at's why the Skinner case is very important because it doesn't just look at the terms of the plan, it says even if the terms of a plan clearly exclude it, we look at the degree to which plan sponsors have discretion over determin- ing the various aspects... and the extent to which the administrator would have discretion in allowing certain exceptions." While the Canadian Life and Health Insurance Association does not comment on individual cases, it is generally up to the employer to decide if it wants to cover medical marijuana under its group benefit plan, said Wendy Hope, vice-president of external relations at the association. "Medical marijuana is not typi- cally covered under group benefit plans for a number of reasons, in- cluding that it is not yet approved by Health Canada for safety, effi- cacy and quality (no drug identi- fier number has been issued for medical marijuana generally)," she said, adding medical mari- juana can already be reimbursed through a health-care spending account. Request for extended coverage denied 3 times HUMAN RIGHTS < pg. 1 "ere was no evidence presented to suggest that premiums would have to be increased or that the financial viability of the plan would be threatened." Credit: Mario Anzuoni (Reuters) A variety of medicinal marijuana buds in jars are pictured at Los Angeles Patients & Caregivers Group dispensary in West Hollywood, Calif., on Oct. 18, 2016.

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