Canadian HR Reporter

CANADIAN HR REPORTER May 15, 2017 INSIGHT 19 Covering medical marijuana Legalization conversation adds further fuel (and urgency) to coverage debate Medical marijuana is the hot topic of the day in health benefi t plans. And the legaliza- tion conversation in Canada is adding further fuel (and urgency) to the cover- age debate. While there are many cannabi- noid-related studies active in the fi eld, there are few involving Can- ada. But that could change with ever-increasing fl ows of capital into licensed producers, and a steadily maturing medical canna- bis industry in Canada. is means we can expect a surge in evidence across diff erent conditions as it relates to the use of medical marijuana in the years ahead. If we mix that with an ever- decreasing stigma around the use of marijuana in a medical context (and otherwise), plan sponsors are going to need to consider how to deal with medical marijuana. ere will not be a standard one-size-fi ts-all approach. How can there be? Policies and ap- proaches will need to vary accord- ing to industry (such as safety- sensitive ones), and will also need to consider the fi nancial means of a plan sponsor. Medical marijuana is Canada's newest specialty medication: Annual plan costs will exceed $10,000 per claimant for anyone who consumes $25 to $30 per day of medical marijuana. at equates to a daily dose of about three grams per day based on cur- rent prices. Not every employer will be in a position to make these kinds of investments. For now, here are some key considerations for plan sponsors when it comes to making initial decisions about how their plans can responsibly address claims for medical marijuana. Consider the evidence Anecdotally speaking, users claim medical marijuana has benefi cial impacts on a wide range of condi- tions ranging from irritable bowel syndrome to post-traumatic stress disorder or glaucoma. Imagine if a new traditional pharmacological agent was released to the market and costs from $2,500 to $25,000 per year and had 25 or more dif- ferent indications for use — that's what we're dealing with here. There are very few condi- tions where there is conclusive, substantial or even moderate evidence to support the use of medical cannabis. Interestingly, Shoppers Drug Mart made some buzz recently with its announce- ment it would cover up to $1,500 in medical marijuana per year for plan members. But the approved indications under the plan do not line up with the existing evidence base. Covering only two of the in- dications where there is meaning- ful evidence is an interesting line in the sand. I'll be curious to see if Shoppers is challenged on that. It's also interesting to note the $1,500 limit — that would equate to about half a gram per day at current prices. Eff ective coverage of medical marijuana long-term will need to go beyond cherry-picking a couple of indications for relative- ly small patient populations, and allocating a fi xed sum of money that may not come near to off set- ting the actual fi nancial burden to a member. If you want to make a splash in the media, that's great and an eff ective way to do so, but if you are serious about responsible coverage, there is much more to it than that. Plans need to consider the ex- isting evidence in determining ini- tial policies governing coverage of medical marijuana. is area will need to be actively managed mov- ing forward. What makes sense in 2017 or 2018 may not make any sense by 2021 as evidence, clini- cal guidelines and dosage forms evolve. A disease state-based approach to managing prior authorization claims for medical marijuana (in cases where plan sponsors are willing to cover medical marijua- na or consider appeals for cover- age) should form the foundation of a coverage policy. Consider the dose, dosage form Clearly, most workplaces are not going to support smoking of any kind, including that of medical marijuana, so dosage form is a major consideration. at said, there are fascinating diff erences between dosage forms and their impact on users. For ex- ample, liver enzymes hydroxyl- ate tetrahydrocannabinol (THC) to form 11-OH-THC which is a potent psychoactive metabolite that easily crosses the blood brain barrier. 11-OH-THC is more po- tent than THC and appears in the blood in much higher quantities when cannabis is ingested as op- posed to inhaled. is should be a concern to any employer in a safety-sensitive industry. ere is also signifi cant inter- patient variability with regards to this rate of metabolism that can lead to wide-ranging thera- peutic doses when using edible cannabis. Interestingly, preliminar y guidelines for prescribing smoked cannabis for non-cancer pain be- ing developed by the College of Family Physicians of Canada are considering dosing of 100 mg (one inhalation) up to four times daily to a maximum of 400 mg per day. at would limit quanti- ties to 12 grams every 30 days. I'm certain many users would have something to say about a limita- tion of 12 grams per month. It will be interesting to see where guide- lines take dosing moving forward across diff erent conditions. Consider drug interactions THC is metabolized through the following liver enzymes: CYP2C9, 2C19 and 3A4. Traditional medi- cations that signifi cantly inhibit these enzymes can have clinically signifi cant impact on cannabis levels and adverse eff ects. Close monitoring is required for patients using certain anti- depressants, stomach acid ther- apies, antibiotics, antifungals, blood pressure medication and protease inhibitors. Cannabinoids are known to inhibit CYP1A1, 1A2 and 1B1 enzymes which can be a con- sideration for members taking therapies such as amitriptyline and granisetron. Health Canada estimates 4.6 million Canadians aged 15 and over will use cannabis at least once in 2018, and this fi gure is expected to grow to 5.2 million by 2021. It is going to be impos- sible for plan sponsors to avoid the medical marijuana discussion in the years ahead. Sure, we all know medical marijuana does not have a drug identifi cation number, and we all know Health Canada has not approved its use — but that isn't going to be enough to avoid the subject as greater levels of evi- dence emerge for safe and respon- sible use of medical marijuana. e pressure to develop poli- cies to responsibly manage claims for medical marijuana will con- tinue to grow. ere are some in- teresting areas of opportunity for employers, and certainly some important risks that need to be considered and managed — not the least of which are safety and fi nancial considerations. Using a clinically robust, evi- dence-based and case-based ap- proach to managing claims will help ensure members who benefi t from therapy have access through the plan, where appropriate, and risks are properly managed. Mike Sullivan is president and co- founder of Cubic Health in Toronto. For more information, visit www. cubichealth.ca. How to protect sensitive information If a worker requests accommodation, how does an employer balance privacy issues? Question: If a worker requests accommo- dation based on family status, how does the employer balance the sensitivity of the worker's private information with having enough information to evaluate the request? Answer: In most Canadian ju- risdictions, family status is a pro- hibited ground of discrimination under human rights legislation. As a result, where a workplace rule has the eff ect of discriminat- ing against an employee because of her family status, the employer may have a duty to take reason- able steps to accommodate the employee's circumstances, up to the point of undue hardship. e nature and extent of the accommodation may depend on the jurisdiction that governs the employment relationship. In the 2004 Campbell River & North Island Transition Society v. H.S.A.B.C., the B.C. Court of Appeal ruled a prima facie case of discrimination on the basis of family status will only be made out if a change in a term or con- dition of employment results in "serious interference with a substantial parental or other family duty or obligation of the employee." Under this test, most situations involving confl icting work and family obligations will not trigger the employer's duty to accommodate. In the 2014 Johnstone v. Cana- da (Attorney General), however, the Federal Court of Appeal ex- pressly disagreed with the deci- sion in Campbell River, and ruled that where workplace discrimi- nation on the ground of family status resulting from child-care obligations is alleged, the claim- ant must show (a) a child is un- der her care and supervision; (b) the child-care obligation engages the individual's legal responsibil- ity for that child, as opposed to a personal choice; (c) she has made reasonable eff orts to meet those child-care obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and (d) the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfi ll- ment of the child-care obligation. Under this test, the employee does not need to show "serious interference" with family obliga- tions before the duty to accom- modate arises. An employee who seeks ac- commodation must participate actively and co-operatively in the accommodation process, and as- sist the employer in its search for an appropriate accommodation. e employee's duty to assist will include providing the employer with the information it needs to make a proper assessment of the requested accommodation. An employee's duty to provide necessary information is often discussed in cases involving dis- ability-related accommodation requests, where the employer needs medical information to evaluate the employee's need for accommodation and the specifi c accommodations that are medi- cally required. In these situa- tions, although medical infor- mation is ordinarily private and confi dential, it is acknowledged that employers can require ac- cess for legitimate purposes such as investigating appropriate accommodations. e employer is entitled only to the information it needs to dis- charge its duty to accommodate, and it must ensure such informa- tion: is accessed only by employer representatives who need to see it, is protected from disclosure, and is properly secured. While an employee generally cannot be disciplined for failing to provide required medical information, an unreasonable failure to co-op- erate in the process may end the employer's duty to accommodate. Similarly, an employee who seeks accommodation on the basis of family status must pro- vide the employer with the in- formation it needs to evaluate the request and determine the accommodations that are neces- sary. is could include the ages of the employee's children, any special needs aff ecting their care, the employment circumstances of the employee's spouse, the employee's financial situation, and the availability of other family members to assist with childcare. The circumstances of each situation must be assessed so the employer can balance its obligations under the applicable privacy legislation and duty to accommodate. For more information see: •Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.). •Johnstone v. Canada (Attorney General), 2008 CarswellNat 661 (F.C.A.). Colin Gibson is a partner at Har- ris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Colin Gibson ToUGHest HR QUestioN Medical marijuana is the hot topic of the day legaliza- tion conversation in Canada is adding further fuel (and urgency) to the cover- Mike Sullivan GUest CoMMeNtArY

• Cover