Like New Jersey’s law, the Pennsylvania MMA was enacted to decriminalize the possession of a certain amount of marijuana for medical use by qualified patients. This runs afoul of the federal Controlled Substance Act, which defines marijuana in the strictest “Schedule 1” category, making the “manufacture, distribution, or possession” of marijuana a felony.
Future court reviews in Pennsylvania may agree with New Jersey in the Hager decision that its marijuana act prevails, reasoning that (1) the employer is not engaging in the “manufacture, distribution, or possession” of marijuana when it reimburses an employee’s cost for it; (2) it is not “aiding and abetting” a violation of federal law, because the employer does not have the “intent” and “active participation” that are required elements for aiding and abetting; (3) federal prosecution is not a real risk; and (4) medical marijuana can be “reasonable and necessary” in the right circumstances.
However, Pennsylvania employers can point to an important part of its MMA that appears to relieve them from any responsibility for an employee’s medical marijuana. The Pennsylvania MMA states that it “shall not be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana”. 2015 PA. SB 3, Section 2102.