While a recent court ruling has given some relief to plan sponsors concerned about having an obligation cover medical marijuana under their benefits plans, they still face a number of questions with legalization of the recreational version of the drug coming fast.

That was a key message from Loretta Bouwmeester, a partner at Mathews Dinsdale & Clark LLP, during a session at Benefits Canada‘s Calgary Benefits Summit last week.

“Do you have to cover it? The answer is no. It’s a benefit that you can add on,” Bouwmeester told participants at the event at Calgary’s Fairmont Palliser hotel last Tuesday.

Bouwmeester was referring to a recent court ruling from Nova Scotia that found a benefits plan didn’t have an obligation, under human rights standards, to cover medical marijuana. But with the federal Liberal government’s plan to legalize recreational marijuana proceeding this summer, employers still face a number of issues. They include increased demands from employees to cover the drug, an issue that will only grow in significance as the number of medical marijuana users rises quickly.

“Just be prepared to know that this could hit your doorstep,” said Bouwmeester.

Safety will be a major concern, said Bouwmeester, who noted that while a doctor may have authorized or prescribed medical marijuana, that doesn’t mean it’s safe to use in the workplace. As she pointed out, while the cannabidiol present in medical marijuana products isn’t psychoactive on its own, a person will test positive and impairment will still be a concern. At the same time, there are gaps in the tests available for impairment, according to Bouwmeester.

As a result, employers will face difficult issues with medical marijuana users in safety-sensitive positions. “Either you work in a safety-sensitive role or you use,” Bouwmeester said of the message to employees in that position. She emphasized, however, that medical marijuana shouldn’t be the first-line treatment option. “It should be second or third,” she said.

Also complicating the issue is the question of what constitutes a safety-sensitive role. “We are seeing a stretch on what is a safety-sensitive role,” she said, noting the concern about position in which errors can be a significant problem.

“The truth is we’ve got 50 shades of grey in terms of what a safety-sensitive position is,” she added.

An interesting question from the audience at the Calgary event came from someone who asked about the possibility of covering medical marijuana for managers and high-level employees only. While employers can and do differentiate their offerings, Bouwmeester noted the pitfalls of doing so in this case. “In all seriousness, you are going to get a backlash on that one,” she responded.