A recent Ontario arbitration1 involved a grievance
alleging that the denial of a claim for reimbursement for medical
marijuana under a group health plan breached the collective
agreement and is a helpful reminder that notwithstanding the
attention medical marijuana has received in recent years, there are
practical limits and issues for employers to deal with in claims
related to medical marijuana.
The greivor's spouse had a medical document from a licenced
physician, which suggested that she ingest three grams of dried
marijuana per day for a period of six months to address two medical
conditions. The greivor's spouse obtained the recommended
dosage of marijuana from a licenced producer as well as a receipt
for the purchase.
The employer's collective agreement set out the following
requirement 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." 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 existing legislative framework
associated with medical marijuana. The arbitrator 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 designated with a
The arbitrator reviewed the explanation provided by the Ministry
of Health as to why dried marijuana has not been designated with a
DIN, which in essence is that Canadians who require marijuana for
medicinal purposes have been found to have a right of reasonable
access, but that doesn't mean that the Ministry has to certify
dried marijuana as a therapeutic product.
The arbitrator reviewed the impugned clause in the collective
agreement and, applying the principles of collective agreement
interpretation, found 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 an approved
drug under the FDA.
The arbitrator did not hear argument on the Ontario Human
Rights Code and the Canadian Charter of Rights and
Freedoms and that issue has been left to another day.
What Employers Should Know
Issues related to medical marijuana and the workplace are
arising 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 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 equal. 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
ensure that the prescription is for a form of marijuana that will
have a minimal impact on the employee's ability to perform
work, while still achieving the employee's therapeutic
When confronted with an issue related to medical marijuana and
the workplace, employers should obtain case-specific legal
1. The Corporation of the City of Hamilton and the
Hamilton Professional Firefighters' Association (2016
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
On February 1, 2017, the Ontario Human Rights Commission released a policy statement that seeks to clarify the type and scope of the medical information that employees need to provide to their employers to support disability-related requests for accommodation.
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