Prime Minister Trudeau portended the legalization of ‘pot’ in Canada in his election campaign. Pending such development, a recent decision by a court-appointed Board of Inquiry has ‘planted the seed’ for coverage of medical marijuana prescriptions under employee benefit plans: Skinner v. Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund (“Skinner“).Although ‘weed’ is ubiquitously available in so-called “green cross” storefronts in Canada, we were recently reminded by the Prime Minister that while legalization may be on the horizon, thinking it’s now the law is hallucinatory: “Canada pressing forward with marijuana legalization amid U.S. uncertainty.” Toronto Star, 31 January 2017.

Equally, while transitory, police continue to conduct crack-downs (pardon the pun) on these hazy operations: see for example, “The Toronto pot bust: Everything you need to know.” The Globe and Mail, 27 May 2016. For the time-being,  Canada is not Colorado or, for that matter, D.C.

As controversial as legalization remains, there is nothing ‘dopey’ about the inclusion of prescribed marijuana in standard employee medical benefits plan coverage. In the instance of broadly inclusive prescription coverage, such medicine would naturally fall within most plan parameters where the employee has a doctor’s prescription as a result of a medical diagnosis.

Against a backdrop acknowledging that plans are designed to restrict unreasonable extension of coverage in terms of expense and breadth, the Board of Inquiry addressed the “reasonableness” of extending coverage to a novel prescription:

“Employee benefit plans are not required to cover the sun, moon, and the stars. However, where an employee with a disability requests coverage that is consistent with the purpose of a plan and comparable to coverage provided to other beneficiaries, more is required from a plan administrator than simply an assertion that its hands are tied by its policy and forms. In the absence of evidence that extending coverage would unreasonably alter the plan premiums or risk its financial sustainability, non-coverage of a medically-necessary drug may amount to discrimination”.

As in the interpretation of any contract, it is the language that prevails in any analysis of entitlement. For example, in Corporation of the City of Hamilton v. Hamilton Professional Fire Fighters’ Association, the arbitrator denied coverage of ‘medi-pot’ because the policy expressly required a Health Canada drug identification number (DIN) which as an otherwise illicit drug, cannabis does not have.

Here, the benefit plan at issue in the Skinner case did not require a DIN, rendering the stipulated coverage to arguably include medical marijuana:

“Reasonable and customary charges incurred for medically necessary drugs and medicines specified below. Such drugs and medicines must be obtained only by prescription from a person entitled by law to prescribe them and dispensed by a licensed pharmacist, physician or other health care practitioner authorized by provincial legislation to dispense them.”

In this case, the Board of Inquiry weighed the benefit to the applicant against the cost to the insurer:

“The respondent’s justification for non-coverage is wholly inadequate. The respondent led no evidence to establish that coverage of medical marijuana, on a case-by-case basis or as an amendment to the Welfare Plan, would result in undue hardship. There was no evidence presented to suggest that premiums would have to be increased or that the financial viability of the plan would be threatened.”

Remarkably for we litigators, the complainant was self-represented, while the represented respondent failed to provide compelling evidence of unreasonable risk, harm or exposure. The insurance industry will take note.

As an interim Order subject to further hearings and appeal, the Skinner story may yet to be writ. But in the meantime as employers contemplate the endorsement of coverage for medical marijuana under permissive plan provisions, employees with medical benefits coverage can “smoke ’em if you got ’em”.