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Medical Marijuana:  Does your health benefit plan cover it?

Summer 2016

The use of medical marijuana has gained widespread acceptance as a treatment for a range of chronic illnesses. However, while Canadian courts have established that people have a right of reasonable access to marijuana for the treatment of certain medical conditions, there are still many aspects of medical marijuana use that need to be addressed.  One area of uncertainty has been whether a health benefit plan will cover the cost of medical marijuana.  This newsletter summarizes a recent decision on this point.

Legal Framework

Over the last decade, Canadian courts have created a limited right of access to marijuana by individuals with certain medical conditions.  The Marijuana for Medical Purposes Regulations (the “MMPR”) establishes the legal framework that enables people to possess medical marijuana in Canada.  The stated purpose of these regulations is to regulate the commercial production of marijuana by increasing access to quality controlled marijuana grown under secure and sanitary conditions.  The MMPR are currently under review following a decision of the Federal Court which held that aspects of the MMPR violated the Canadian Charter of Rights and Freedoms (the “Charter”).  However, as of Spring, 2017, no updates have been released.  Given the pending amendments, the regulation of marijuana is expected to shift dramatically over the next few years.  This state of affairs causes a level of uncertainty for employers.

Marijuana and Medical Benefits

One area of uncertainty is whether medical marijuana qualifies as a medical expense covered by health benefit plans.  A recent labour arbitration decision from Ontario ruled that it does not.

The decision in City of Hamilton v. Hamilton Professional Fire Fighters’ Association, 2016 CanLII 16885 (ON LA) (“Hamilton”), involved the denial of a claim for reimbursement for medical marijuana under a group health plan available to employees of the City of Hamilton (the “City”).  The grievor was a firefighter for the City.  His spouse was prescribed three grams of dried marijuana a day for six months.  She had all proper supporting documentation and got the medical marijuana from a licensed producer.  The grievor submitted a medical expense claim under his group health plan for his spouse’s medical marijuana.

The group health plan administrator denied the claim for reimbursement on the basis that dried medical marijuana did not have a drug identification number (“DIN”) from Health Canada. According to the plan administrator, the medical marijuana prescription was not a drug expense covered by the group benefit plan because it did not have a DIN.

The union grieved the denial of reimbursement as being contrary to the collective agreement, the Ontario Human Rights Code and the Charter.  The parties agreed to split the issues and address the human rights and Charter arguments at a later date, if necessary.  Accordingly, the arbitration decision considers only whether the denial of coverage for medical marijuana violated the collective agreement.

The arbitrator considered the current case law and legislation surrounding the use of marijuana for medical purposes, including the MMPR.  It is important to note that the time of the hearing, the Federal Court’s finding that aspects of the MMPR violated the Charter had not been released.  The arbitrator noted that while the courts have established a right of reasonable access for individuals who require marijuana for medicinal purposes, that does not mean that marijuana has been recognized as a therapeutic product.  The Food and Drug Act (the “FDA”) administered by Health Canada sets the general framework for the authorization of drugs for sale in Canada. Through the FDA, Health Canada may, after detailed review, authorize a drug for sale in Canada.  When a drug is authorized, it is given a DIN.  Health Canada has stated that dried marijuana has not been given a DIN as there is insufficient medical evidence that dried marijuana itself (rather the chemical compounds in marijuana) have any health benefits.

In Hamilton, the collective agreement required that, in order for reimbursement for drugs under its group health plan, “drug claims must indicate the prescription number, name, strength and quantity of the drug plus the drug identification number” (underlining added for emphasis).  The arbitrator held that on the express wording of the collective agreement, the benefit plan carrier was justified in denying the claim.  The collective agreement was clear:  only drugs with a DIN qualified as eligible medical expenses.  As dried medical marijuana did not have a DIN, it was not an eligible medical expense under that plan. The arbitrator’s decision was restricted to just a consideration of whether denial of coverage violated the collective agreement and did not address any possible human rights or Charter implications.

Conclusion

Although the use of medical marijuana is increasingly common, there may still limitations on its use and perhaps its coverage under health benefit plans.  We urge employers to remind employees to check the language in collective agreements, health benefits plans and any other potentially relevant documents to learn if the cost of medical marijuana is covered by the plan in place in that workplace.

This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and immerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are urged to consult their professional advisers before taking any action on the bases of information contained in this newsletter.   If you have any questions about any issues raised within this newsletter or a related issue, please contact us at wh@wickwireholm.com or 902.429.4111.

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