llness and Absenteeism.com - October 2017 Newsletter

In this edition you will find:

A. Featured Case: Medical evidence of an addiction to alcohol was not required where the employer had been “wilfully blind” to the need for accommodation. The employee was reinstated with all lost wages and benefits, with the arbitrator refusing to impose conditions regarding abstention or entry into a last chance agreement. The refusal to impose conditions stemmed from the misguided belief that such conditions are “completely contrary to the legislation and jurisprudence that defines addiction to alcohol as a disability.” The arbitrator stated that to impose such conditions “was akin to telling the [employee] to stop being disabled.”   [Click here]

B. Recent Decisions of General Interest

  1. A request for information regarding an employee’s functional and/or cognitive impairment was found to be inappropriate in the context of an initial assessment of a claim for disability benefits.   [Click here]

  2. An employer must provide for meaningful employee input when assessing an employee’s request for accommodation.  [Click here]

  3. An employer who relied on a deemed termination clause to justify an employee’s termination was not entitled to rely on evidence of employee misconduct in support of that termination.   [Click here]

  4. Arbitrators have adopted a “lesser standard of reasonableness” for the admission of overt video surveillance evidence (i.e. the use of fixed in-plant cameras) than for the introduction of covert surveillance (i.e. incidental targeted surveillance).   [Click here]

  5. An employer was not entitled to challenge a medical assessment where the parties had agreed that such assessment was to be conclusive and binding  [Click here]

  6. A failure to include medical marijuana within an employer’s prescription benefit plan may amount to discrimination on the basis of a medical disability.   [Click here]

A. Featured Case:Medical evidence of an addiction to alcohol was not required where the employer had been “wilfully blind” to the need for accommodation. The employee was reinstated with all lost wages and benefits, with the arbitrator refusing to impose conditions regarding abstention or entry into a last chance agreement. The refusal to impose conditions stemmed from the misguided belief that such conditions are “completely contrary to the legislation and jurisprudence that defines addiction to alcohol as a disability.” The arbitrator stated that to impose such conditions “was akin to telling the [employee] to stop being disabled.” 

Prince Albert Parkland Health Region, 2016 CanLII 48150 (SK LA) (Hood), considered whether the employer was or should have been aware that the employee was suffering from an addiction to alcohol. It is illustrative of the type of difficult analysis required in assessing the appropriate response to cases involving both culpable and non-culpable conduct. It considers the hybrid approach to such cases and the impact of a “sunset” clause on employee file material that was for the most part non-disciplinary in nature.

The case should be read carefully, for while the arbitrator’s conclusion on whether the employer knew or should have known that the employee was suffering from a disability (alcoholism) is sustainable, his conclusion that the employee’s conduct was totally non-culpable, and his analysis regarding the impact of the “sunset clause” in a case such as this, are somewhat questionable and merit close consideration. The same can be said with his statement that conditions regarding abstention from drugs or alcohol and the imposition of a last chance provision or agreement are completely contrary to the legislation and jurisprudence that defines addiction to alcohol as a disability.

Here, the employee, who worked as a Continuing Care Assistant in a personal care home, was terminated after she came to work in an intoxicated state. This occurred in June of 2014.

The union’s position was that the employee was an alcoholic and that she should have been accommodated rather than terminated.

At a meeting the following day, the employee advised that she was not intoxicated; stating that she had only had one drink in the morning of that day and then taken one half of a sleeping pill twelve hours prior to her night shift. In preparation for that meeting, the employer prepared two letters; one being the termination letter that was provided, and the other being a letter that anticipated an acknowledgement by the employee that she had an addiction. It advised her that she was being suspended without pay pending her enrollment in a recognized treatment program. It stipulated that upon her return, the employee would be subject to a last chance provision for a two year period.

The employer maintained at the hearing that although it knew that there had been “similar type situations” in the past with this employee, current management was unaware that the employee was addicted to alcohol or that she had a health issue resulting from addiction. However, in the meeting to investigate the incident, the Director of Care had reminded the employee of previous alcohol related issues that had occurred in 2007, 2008, 2010, and 2013. She had also reminded her of three similar incidents that occurred in May and June of 2014 (i.e. within less than two months prior to the latest incident). The 2007 incident led to a three day unpaid suspension.

The employee attended an addiction centre on an outpatient basis in 2010 and then for 28 days on an inpatient basis in 2011. The employee testified that she maintained her sobriety for three years until she had a relapse in the month preceding her termination. She acknowledged that she was intoxicated when she came to work on the day in question, and that she had been too “scared” to admit the truth.

The employer, for its part, had taken the position that the disability and the impugned behaviour could only be established through expert medical evidence. The arbitrator reviewed several decisions regarding whether medical evidence was required. He concluded that it was not always necessary to provide medical evidence of an addiction, and that here, it was “inconceivable” that the employer did not know that the employee was addicted to alcohol. He stated that the employee’s denial that she had been drinking was “implausible, and he commented “what more would a reasonable employer need to trigger the accommodation set out in the letter that was not delivered.”

In essence, the employer had been wilfully blind to whether the employee’s conduct was in some way related to a disability that merited some form of accommodation. That alone should have been sufficient to trigger the employee’s reinstatement with conditions. However, the arbitrator’s analysis involved an assessment of the approach to be taken and it erred in finding that the employee’s conduct in attending at work in an intoxicated condition (and having denied that she was) was a matter that was totally non-culpable in nature.

After having considered the “hybrid” analytical approach that emanated from British Columbia, the arbitrator concluded that none of the [employee’s] behaviour on the day in question was culpable, for “her attendance at work while under the influence of alcohol was totally attributable to her disability. [She] was no longer in control of her conduct at that time … The [employee’s] showing up for work intoxicated in this case is not a mixture of culpable and non-culpable behaviour. In our view it is solely attributable for the purpose of our analysis to the alcohol addiction. This incident is all about alcohol addiction.”

The arbitrator’s analysis is questionable. As was explained by arbitrator Lanyon in his 2007 award in Fraser Lake Sawmills (2007), 158 L.A.C (4th) 402 (Lanyon):

In the context of issues involving addiction and workplace misconduct, a review of the arbitration cases reveals a spectrum of facts and issues. At one end of the spectrum, the addiction compels or drives the [employee’s] behaviour to the extent of the [employee] in effect having no control (at least control which should attract discipline) over his or her actions.  At the other end of the spectrum there is addiction, but it is found to not have a causal link to the workplace misconduct.

In between these two ends of the spectrum are what could be termed hybrid facts and cases. In the hybrid context, there is addiction which is directly related to or has a causal connection to workplace misconduct by the [employee], but the addiction is not of such a nature so as to remove the [employee’s] control or exercise of choice in respect to the misconduct. In this hybrid context, there is thus a mix of causes, a mix of addiction driven conduct (i.e. non-culpable conduct) and voluntary conduct (i.e. culpable conduct).

… It is in the hybrid fact context and particularly in cases involving dishonesty that the conceptual difficulty arises. In such circumstances, the addiction is relevant in that it has influenced the conduct of the employee, but has not dominated it to the extent that the employee’s actions have been found to be totally non-voluntary. In other words, the employee has not completely lost control over conduct as a result of the addiction. To the extent that control has been lost, the conduct is non-culpable. The portion of the misconduct in which choice and control were present is culpable.

The circumstances here in Prince Albert Parkland were that while the employee had been drinking, there was no suggestion that she was intoxicated to the extent that she had no control over having gone to work while intoxicated. Her conduct is best viewed as both culpable and non-culpable.

Arbitrator Lanyon summarized the type of response that arbitrators generally consider in a hybrid case involving both addiction and culpable conduct:

The nature of hybrid cases will mean that the response adopted by an arbitrator may well contain aspects or elements usually associated with both traditional culpable and non-culpable approaches. There may be a need for some corrective action, which would traditionally be associated with a culpable approach. It may also be appropriate for an arbitrator to conclude that, notwithstanding the presence of some blameworthy behaviour, a largely therapeutic, rehabilitative response is required in the circumstances. It is also now well recognized that because of the nature of the disease, an appropriate therapeutic response may itself require a measure of clear consequences aimed at forcing the employee to take responsibility for his or her treatment and actions (which would normally be associated with a culpable approach) as well as the rehabilitative component (which would normally be associated with a non-culpable approach). Also, a basic question to be answered by the arbitrator in dismissal cases, regardless of the approach used, will be whether the employment relationship remains viable.

The employee in Prince Albert Parkland was reinstated (with the only condition being attendance at an accredited treatment program to the extent reasonably determined to be necessary from time to time). The employee was to be made whole for all lost wages and benefits. The arbitrator refused to impose conditions regarding abstention from alcohol and illicit drugs or entry into a last chance agreement. He erroneously stated “in our view such conditions go too far, and are completely contrary to the legislation and jurisprudence that defines addiction to alcohol as a disability. What the employer suggests is akin to telling the [employee] to stop being disabled.”

The collective agreement contained a “sunset” provision for past disciplinary offences:

Documentation of disciplinary action shall be removed from the employee’s file provided there has been no further discipline of a similar nature rendered within two (2) years of the initial discipline.

The union relied on this provision to suggest that the termination was null and void because the employer had relied on some of the earlier documentation in terminating the employee. The arbitrator accepted that submission and concluded that the employer’s breach of the “sunset” provision, “by failing to remove the stale-dated disciplinary records from the [employee’s] file and by being influenced by such records in its decision to terminate the [employee]” rendered the termination null and void. That conclusion is also questionable. The file material was essentially non-disciplinary and it is doubtful that the alcohol-related health and accommodation considerations reflected in the file fell within the category of documentation that was to be removed from the file because of its disciplinary nature.

The issue of an employer’s obligation to accommodate is fully considered in Chapter 14 of the Illness and Absenteeism manual and its supplement.

B. Recent Decisions of General Interest

1. A request for information regarding an employee’s functional and/or cognitive impairment was found to be inappropriate in the context of an initial assessment of a claim for disability benefits.

In Bluewater Health, 2016 Can LII 61646 (ON LA) (Sheehan), the union grieved that the employer’s policy pertaining to sick pay benefit claims violated the collective agreement and the Ontario Human Rights Code.

The policy required an employee who was absent on account of illness to complete a Medical Leave of Absence for Sickness or Injury. Depending on their bargaining unit, sick leave would be payable after 3 or 4 days absence,  provided that the employee sought medical attention within 48 hours after their third or fourth day of absence, or before they returned to work, whichever came first. The treating practitioner was required to complete an Attending Practitioner Statement. The Policy stated that extenuating circumstances would be dealt with on their own merit. It also provided that failure to adhere to the policy might result in disciplinary action.

In the absence of the required documentation, employees who were not eligible for sick benefits would be considered absent without leave.

Sick benefits were provided under either the 1980 or the 1992 HOODIP Plan (i.e. “Hospitals of Ontario Disability Income Plan”). Grievances under the plan were subject to the terms of the collective agreement.

The employer’s Attending Physician’s Statement for employees covered under the 1992 Plan required the following information:

  • Date first incapable of working;
  • Date first assessed to be totally disabled from all duties;
  • Dates subsequently examined;
  • Specified period of absence;
  • Nature of illness or injury;
  • Employee is under active treatment (please identify);
  • Prognosis/Return to work date;
  • Complete recovery expected;
  • Please describe treatment provided;
  • Please describe treatment plan: Employee is compliant with treatment.

The Statement also required the physician to check a series of boxes that were directed to whether the employee could return to work to perform modified duties. The physician was directed to describe the relevant “functional and/or cognitive impairment” of the employee.

The grievance advanced two broad areas of concern regarding the policy:

  1. The policy could result in a denial of benefits that were available to employees under the collective agreement. In that regard, the “48 hour rule” allegedly imposed an unreasonable, arbitrary and improper requirement; and
  2. The Attending Physician’s Statement sought to solicit private medical information that the employer, at first instance, was not entitled to require.

The arbitrator found that the “48 hour rule” was unreasonable and inconsistent with the terms of the collective agreement, and that it was not saved by the “extenuating circumstances provision.”

On the issue of the questions that were asked on the Attending Physician’s Statement, the arbitrator found that:

  1. Requiring the attending physician to provide information regarding the employee’s impairment as it relates to performing “any and all work” is not only inconsistent with the wording of the collective agreement, but is also unreasonable as it raises the distinct possibility of the disclosure of confidential medical information pertaining to the employee that is not necessary or relevant in light of the definition of “total disability.” The arbitrator directed that the wording “performing any and all work” should be amended to refer to the inability of the employee “to perform the regular duties of his/her occupation.”
  2. On the issue of entitlement to information pertaining to the “functional and/or cognitive impairment of the employee”, the arbitrator stated that “the key problematic aspect of the request is that it arises in the context of an initial assessment of the employee’s proof of disability. The fact that further medical information regarding the employee may be subsequently required does not mean that the employer is initially entitled to more information, at first instance, than is necessary to verify the legitimacy of the absence.” In the result, arbitrator Sheehan concluded that that with respect to the Attending Physician’s Statement” required in the first instance as proof of disability, the request for information relating to “cognitive and/or functional impairment of the employee” should be deleted.

The issue of an employer’s entitlement to medical information is considered in section 14:432 of the Illness and Absenteeism manual and its supplement.

2. An employer must provide for meaningful employee input when assessing an employee’s request for accommodation.   

In Toronto District School Board, 2016 CanLII 26730 (ON LA) (Wacyk), the grievor was a long term Special Needs Assistant who was being accommodated due to permanent physical restrictions. Her school principal then sought to have her re-assigned elsewhere because incoming students included “runners” and those with toileting issues. A suitable position could not be found.

The arbitrator stated that the process of determining whether the employee could be accommodated was woefully deficient:

There is no dispute the [employer] has the right and obligation to satisfy itself an employee is fit to perform the work she is required to do without endangering herself or others …

That right and obligation requires a careful and informed, fact-based and contextual assessment regarding the essential duties of the position, an employee’s limitations, and an exploration regarding what, if any, accommodation can be made to assist the employee in performing the essential duties of the position.

Further, it has long been recognized the above accommodation contains a procedure dimension, which entitles the employee seeking accommodation to have meaningful input into the determination. In a unionized context, this includes the union, the employee’s bargaining agent.

This procedural dimension enables employees in need of accommodation to ensure their abilities, limits and accommodation needs are clearly understood. This not only protects their interests but also assists the employer to make an informed decision. Indeed, it has long been recognized that employees requiring accommodation have a duty to participate in the process, articulating their limitations, and need for accommodation, and assisting in identifying possible accommodation that would aid in the performance of the essential duties of their position. This also often requires the input of the employee’s physicians, or other health care professionals.

If accommodation to enable the [employee] to perform the essential duties of the position is available, it must be provided unless to do so would cause undue hardship. Undue hardship must be demonstrated, not simply asserted. It is not disputed the use of the term “undue” implies that some hardship is acceptable, and it is only undue hardship that satisfies the test. In particular, in this instance, “risk” can only be considered in the context of an undue hardship analysis, not as an independent justification of discrimination.

The school principal had commented that “staff don’t like switching” and that switching the employee’s duties with others would be difficult. The arbitrator noted that “difficulty” is not the test and that an employer would only be relieved of its duty to provide accommodation if to do so would result in “undue hardship”. Furthermore, the attitudes of co-workers cannot be determinative if the result would be to keep discriminatory practices in place. She further stated:

In the context of this case, the [employer] had to demonstrate that it was impossible to accommodate the [employee] without unreasonably risking safety – demonstrating undue hardship. While employers can rely on their common sense and knowledge of the work at issue to inform their assessments, assertions of undue hardship will not be sustained if based only on speculative or unsubstantiated concerns regarding possible negative impacts resulting from accommodation. Rather, there must be an evidentiary basis to establish that it would be undue hardship to accommodate the [employee]. However, without conducting a fact-based individual assessment of her abilities and accommodation requirements, in the context of the essential duties, the [employer] is without the information or evidence it requires to do so.

… By failing to meet the procedural dimensions of its duty to accommodate, the [employer] discriminated against the [employee], in that it denied her her right to have a meaningful assessment of her accommodation needs, with a view to accommodating those needs unless it would be [an] undue hardship to do so.

The employee had been removed from her position while the employer attempted to find her another suitable position. Its efforts were insufficient, for it failed to perform “a meaningful assessment regarding [her] ability to perform the essential duties of positions which may be available. Rather, the [employer] appears to continue to assume the [employee] is not able to perform the essential duties of any position that has “runners’ or that requires walking in the community on field trips, without assessing whether some roles or duties can be switched, or whether there are other methods by which the [employee] can perform the essential duties  of the work.”

The employer was directed to compensate the employee for her lost wages and benefits until the employee was returned to an appropriate position, with accommodation if necessary, or until the employer could demonstrate either that there was no accommodation available that would accommodate the employee’s restrictions, or any such accommodation would constitute undue hardship. The employer was ordered to pay the employee $5000 in general damages for the humiliation, pain and suffering that she experienced because of the employer’s violation of the Code.

The obligation of an employer to engage the employee and her union in meaningful discussion concerning accommodation is considered in section 14:601 of the Illness and Absenteeism manual and its supplement.

3. An employer who relied on a deemed termination clause to justify an employee’s termination was not entitled to rely on evidence of employee misconduct in support of that termination. 

In Atlas Copco Exploration Products, 2016 CanLII 26558 (ON LA) (Randall), the employee had been terminated on the basis that he had abandoned his employment. The collective agreement provided:

An employee shall lose his seniority when any of the following occur:

(g) If an employee is absent from scheduled work for a period of three (3) or more consecutive working days, without notifying the Employer of such absence and providing a reason satisfactory to the Employer.

During the hearing, the employer sought to call evidence of employee misconduct in support of an alternate defence of just cause for termination. The employer’s concerns followed upon complaints advanced by other employees while the employee was absent from the workplace. The issue was whether the employer, given the deemed termination language of the discharge letter, could now pursue a completely different ground to uphold the discharge.

The arbitrator stated:

The general principles are clear and have been adopted by the vast majority of arbitrators, both in Ontario and Canada wide.

1) Arbitrators have refused to permit employers from introducing evidence of wrongdoing that is not closely related to the grounds for discharge initially communicated to the [employee]. It is unfair to the [employee] and prejudicial to his or her defence to conclude otherwise.

2) However, arbitrators will allow employers to add grounds that were unknown to the employer and/or not easily discernible to it at the time the employer affected discipline.

Here, the grounds were not closely related to those which formed the basis of the employer’s decision, and moreover, the new grounds were known and were being investigated by the employer at the time the termination was effected.

The employer’s attempt to expand the grounds for termination was denied.

Matters related to deemed termination clauses are considered in section 16:300 of the Illness and Absenteeism manual and its supplement.

4. Arbitrators have adopted a “lesser standard of reasonableness” for the admission of overt video surveillance evidence (i.e the use of fixed in-plant cameras) than for the introduction of covert surveillance (i.e. incidental targeted surveillance).   

In Armtech Limited Parnership, 2016 CanLII 62447 (BC LA) (Hall), the union grieved the employer’s decision to install additional cameras that would permit video surveillance of plant production areas. The cameras were stated to have been installed to promote safety and security and were said to have the additional benefit of allowing the employer to study and improve production efficiencies and thereby assist it in remaining competive in the industry.

The nature of the work performed at the plant was considered to create a risk of serious injury, with three or four “high potential near misses” occurring each year.

The employer attempted to resolve the unions concerns regarding the installation of cameras before their actual installation but was unable to do so.  The employer then provided the union with a copy of a memo that it would be reviewing with employees. The memo made the following points:

  1. The cameras would not be monitored 24/7 but the footage would be reviewed on occasion  by a few select individuals when required.

     

  2. Cameras would not be placed in lunch rooms or locker rooms unless theft had been reported and then a camera may need to be installed on a temporary basis to help apprehend the perpetrator, and in such cases, the union office would be notified.

     

  3. While the cameras were being installed primarily for the reasons advanced by the company, in the event an employee was observed, during a review of a recording, to have been violating the collective agreement or a company policy relating to safety or security, or to have committed an illegal act, the employee would be spoken to in the presence of union representation, and in such case the employee could be disciplined in accordance with the collective agreement.

Both parties agreed with the applicable principles set forth in Kadant Carmanah Design, [2015] BCCAAA No. 111 (Lanyon) [2015 CanLII 79273 (BC LA)] where the arbitrator’s analysis included a review of the British Columbia Privacy Act and that province’s Personal Information Protection Act; the common law; and arbitral law and policy. The union’s grievance was said to have been advanced by the union solely on the basis of the prevailing arbitral standard, with the arbitrator stating:

In that regard, it has been established for some time in this jurisdiction [i.e. British Columbia] that a “contextual and reasonable balancing of interests” is required [Pope and Talbot Ltd. [2003] BCCAAA No.362 (Munroe)]. More specifically, the privacy interests of employees must be weighed against the legitimate business and property interests of their employer.

In Kadant, arbitrator Lanyon had affirmed the approach ‘in both the arbitral jurisprudence and in the legislative scheme’ which distinguishes between overt and covert surveillance … Covert surveillance requires a higher standard of reasonableness “because it is highly offensive to the reasonable person … However, even in the circumstances of overt surveillance, the privacy interests of employees remain a substantive consideration …”

Here, arbitrator Hall commented that arbitrator Lanyon in Kadant had set forth the following list of factors which may be considered when applying the “less stringent standard” for overt surveillance:

  1. whether the concern for safety and/or security is bona fide (recognizing there will be a subjective element of whether a concern exists; and an objective element which relates to the circumstances of the workplace, but which does not require evidence of a historical problem of security or safety);

     

  2. whether there is a direct link or nexus between the installation of cameras and the issue of safety and/or security (i.e. whether or not there is evidence that the installation was for reasons other than safety or security);

     

  3. whether the surveillance has been implemented  and utilized in a reasonable manner (e.g. the number of cameras, place of installation, use of footage, etc.);

     

  4. whether there are other reasonable alternatives; and

     

  5. any other relevant circumstances in the context of the specific case.

Arbitrator Lanyon had also noted that “past security or safety infractions are not a pre-requisite to the implementation of overt surveillance” and that:

what is required, both subjectively and objectively, is the reasonable installation  and utilization of overt camera surveillance that addresses safety and security concerns. “Reasonableness”, therefore, is about prevention or addressing an identified safety and/or security concern; it is not a “penalty” for past safety and/or security infractions. It is about the present, not the past.

Arbitrator Hall accepted that there was “a direct link between the employer’s safety-related concerns – and more specifically, the purpose for which recorded video images may be used – and installation of the new cameras.” He stated that “in reaching this conclusion, the potentially dangerous nature of the workplace where there are risks of serious injury, along with the emphasis which the employer places already on safety, are very relevant considerations.”

Arbitrator Hall directed that one of the newly installed 12 cameras be limited to use on the employer’s docks, for its resolution was such that it could be manipulated to point in at the plant and zoom in at tremendous resolution.

The union was to receive notice of any contemplated changes in practice which may impact on the privacy interests of employees.

This decision was clarified in Armtec Limited Partnership, 2016 CanLII 98167 (BC LA) (Hall), where the employer sought confirmation that the initial award permitted a review of recorded video surveillance to ascertain the cause of a “bottleneck” or other production incident.

The arbitrator provided that confirmation:

I accordingly clarify for the parties that the initial award contemplated using the new cameras to investigate unanticipated bottlenecks and other production related incidents (as opposed to a planned time study) … The term “incident” was deliberately not restricted to matters of safety, and the intended use  is entirely consistent with “the less significant objective of the employer to be able to use the cameras installed in the production areas to improve efficiencies and to ensure it remains competitive in the industry.”

The admissibility of surveillance evidence is considered in Chapter 12 of the Illness and Absenteeism manual and its supplement.

5. An employer was not entitled to challenge a medical assessment where the parties had agreed that such assessment was to be conclusive and binding.

In Canadian Football League, 2016 CanLII 82026 (ON LA) (Kaplan), the issue was whether the employee was “unfit” to play professional football.

The collective agreement provided that such question was to be determined by a neutral physician selected by the parties and that his or her decision was to be conclusive and binding upon the parties. The physician who was selected examined the employee and then issued his opinion that the employee was “fit to play skilled football.” The union rejected that assessment on the grounds that the doctor should have performed additional testing before issuing his report.

The employer took the position that the issue was not arbitrable. Arbitrator Kaplan agreed. The terms of the collective agreement were “clear and dispositive.” He stated:

[The doctor’s] report is self-evidently thorough and in compliance with the detailed instructions he received. It is not my job, nor either of the parties, to second-guess what tests were ordered, or, arguably, should have been ordered. Instead, the parties have agreed upon certain independent physicians and entrusted them given their expertise and professionalism to conduct a “fully considered” examination and to then be bound by the results.

From a process and substance point of view, the agreement of the parties has been followed to the letter. The parties have decided that this process is final, binding and not subject to review. The intention of the parties is manifest. There might be some truly exceptional case where it is necessary to inquire further. That is not this case. There is nothing in any of the facts that indicate the process was deficient, for example, cursory, blind to the evidence, biased, or otherwise materially and fundamentally inconsistent with the agreement of the parties.

The issue of parties being bound by an agreement to accept the determination of an agreed upon physician is considered in section 6:308 of the Illness and Absenteeism manual and its supplement.

6. A failure to include medical marijuana within an employer’s benefit plan may amount to discrimination on the basis of a medical disability.  

In Board of Trustees of the Canadian Elevator Industry Welfare Trust Fund, 2017 CanLII 3240 (NS HRC) (Perryman), the adjudicator concluded that the complainant was discriminated against when he was denied coverage for medical marijuana by the Trustees responsible for making decisions under his benefit plan. By way of an introductory overview to his decision, the adjudicator stated:

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 rather 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 plan premiums or risk its financial sustainability, non-coverage of a medically necessary drug may amount to discrimination.

As a result of the denial of coverage, the complainant’s pain had gone under-managed, and that had profoundly negative effects on the employee and his family. The adjudicator commented that:

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 establish that premiums would have to be increased or that the financial viability of the plan would be threatened.

The adjudicator ordered an interim remedy requiring payment of the cost of the prescriptions subject to several enumerated conditions.

The issue of prima facie discrimination as it relates to the provision of benefits is considered in section 14:205 of the Illness and Absenteeism manual and its supplement.