What Employers Should Know About Cannabis and the Workplace

October 14, 2024

A Regulatory Minefield

Marijuana, cannabis, weed, or whatever you want to call it is a growth industry. We know it’s still an illegal Schedule 1 drug under federal law; so how is it that we can grow, sell, or buy it in Massachusetts? And what effect does the regulatory minefield have on employers and the workplace?


Today’s article will explore the legal ins and outs of cannabis relative to Massachusetts workplaces. In addition, it will provide a brief overview of the current federal and state regulatory scheme.

 

Federal Stance and Future Legislation


Cannabis is still considered a Schedule 1 illicit substance under federal law. Most simply stated, this means that if one is found in possession of marijuana by a federal officer or border official, you’re in trouble. However, a growing number of states, like Massachusetts, have chosen to move forward and allow the sales and distribution of cannabis, either for medical or recreational use, within state borders. In fact, 24 states have legalized marijuana.


There have been several proposed bills in Congress to help move cannabis from its Schedule 1 classification (covering the most addictive and destructive substances, such as heroin) to Schedule 3 (defined as drugs with a moderate to low potential for physical or psychological dependence, such as anabolic steroids). See, for example, the Marijuana 1 to 3 Act of 2023.


Other than the obvious relaxation of legal impediments to cannabis use, the proposed federal bills have some amazing tax benefits for the cannabis industry as a whole. For starters, IRS enforcement action would be one less problem to worry about. Currently, cannabis businesses do not enjoy the same tax deductions as the average mom-and-pop or Fortune 500 company. This is due to Internal Revenue Code Section 280E, which does not allow certain standard business deductions due to the legal risks associated with the illegal ‘trafficking’ of a Schedule 1 drug. Cannabis businesses also face higher income-tax rates as a result of their business. Most of the proposed federal laws would remove those tax obstacles and categorize cannabis as just another product sold by just another business.


Additionally, placing cannabis into a Schedule 3 classification would allow for this industry to become regulated like any other Schedule 3 drug provider. While striving for more federal regulations may sound counterintuitive for a business, the current patchwork quilt of state regulations has not served consumers well.


As noted recently in the Boston Globe, the quality of lab test results relative to marijuana mold contamination and THC levels has raised consumer concerns in Massachusetts and may have negative repercussions relative to state cannabis businesses. More specifically, state cannabis businesses have been accused of circumventing health regulations by ‘shopping’ for laboratories with loose (or non-existent) standards in order to obtain favorable testing scores.


A straightforward, no-nonsense standard for regulation and testing, like the one the U.S. Food and Drug Administration has for Schedule 3 drugs, would give consumers confidence that the products they are purchasing are both safe for consumption and contain the product described on the label.


There are other pending bills that would favorably affect the cannabis industry. One of the eagerly watched bills is the SAFE Banking Act, which was meant to make banking services accessible to state-regulated cannabis businesses without the fear of federal penalties. Specifically, its provisions would allow for the profit from a state-regulated cannabis business to be considered just that, and not proceeds from an unlawful activity.


The banking industry is traditionally quite conservative when it comes to risk taking in the area of emerging or ‘unlawful’ industries. Without such banking legislation, it remains very difficult, if not impossible, for state-regulated cannabis businesses to get routine business loans and/or building or mortgage commitments. Insurance companies, also conservative entities, have begun to craft specific policies for the cannabis industry; however, much of such coverage is prohibitively expensive.


The States Reform Act is a pending bipartisan effort to change cannabis regulation by creating a permitting process on the federal level for cannabis-based businesses. This would allow federal oversight on products that cross state lines, thus allowing lawful interstate commerce.


Under current law, the states and federal government disagree on the legality of cannabis use, thus making its transportation across state lines a legally precarious task. Such product movement currently requires ‘creative’ transportation routes. Typically, it’s the smaller companies who suffer and lose out on increasing their business if they lack the resources to come up with those creative solutions.


Cannabis and the Massachusetts Workplace


A big question that arises regarding cannabis in the workplace is “how is drug testing affected by employee use of medical and/or recreational cannabis?” It is important to note that, if you require your applicants or employees to be drug-tested, you should have a company-wide policy that details specific scenarios that would require drug testing. After that, enforcement becomes a management issue.


A rule of thumb to follow is that employers should generally require their employees to refrain from using alcohol and/or other drugs while on the clock. Reporting for work while intoxicated, or under the influence of mind-altering drugs, should also be addressed.


The follow-up question that is often asked is “what if an employee uses marijuana for a medical purpose?” Medicinal use of marijuana is a very real and effective remedy for several conditions and must be treated seriously in the workplace to avoid any violations of the Americans with Disabilities Act.


It is not a business owner’s responsibility to probe every employee to see who has a disability and how they cope with it; they also are not required (as of yet) to accommodate the use of medical marijuana in the workplace. Employers are, however, required to have an interactive conversation with an employee to determine whether a reasonable accommodation is possible for an employee who uses medical marijuana to treat a disability.


Given the legal complexities, such situations need to be addressed on a case-by-case basis, and consulting with a business or employment lawyer well-versed in cannabis regulation is advisable.


The framework this act would establish would create federal regulations on interstate cannabis-based activities. The act would also impose a 3% federal cannabis excise-tax structure with a 10-year moratorium on increases to said tax. With the perennial federal budget shortages, this excise tax would be a welcome addition to the federal tax coffers.


Jason Ortiz and Elaine Reall are attorneys who specialize in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.


Jason Ortiz and Elaine Reall co-authored this article which was featured in Businesswest. Click here to visit their website. Reall was a featured panelist on a panel providing insights into the legal and regulatory status of the cannabis industry at the 2024 annual meeting of the National Assoc. of Minority and Women Owned Law Firms, which took place Sept. 15-18.

Modern Leadership Through Coaching

June 20, 2025
“Ability is what you’re capable of doing. Motivation determines what you do. Attitude determines how well you do it.” This quote from my Notre Dame football coach, Lou Holtz, has not only resonated with me through all aspects of my life, but it has guided me in coaching employees for success. Indeed, in playing for Coach Holtz in the late 1980s and winning a national championship with him, I learned quite a bit about leadership and accomplishing goals. The following takeaways that I learned as a young adult are what I have implemented into my professional life. While the objectives of leadership — driving performance, fostering engagement, and cultivating growth — remain constant, the ways in which we motivate our teams have evolved with each generation. What inspired Baby Boomers may not resonate with Millennials or Gen Z. Understanding these generational shifts is key to effective leadership today. In today’s work environment, coaching employees is not just a leadership tactic — it’s a strategic imperative. Remote work has reshaped communication, and employee expectations have shifted toward development and purpose. Coach Holtz’s quote serves as a simple but powerful framework for effective coaching: leaders must recognize ability, fuel motivation, and shape attitudes to bring out the best in their teams. Recognizing Ability: Know What Your People Can Do The first step in coaching is understanding each employee’s strengths and capabilities. This means going beyond résumés and job descriptions to truly observe how individuals think, solve problems, and interact with others. When leaders understand what their team members are capable of, they can align tasks and goals in ways that challenge without overwhelming. Coaching helps bridge the gap between raw potential and real-world performance. Inspiring Motivation: Help People See the Why Motivation is deeply personal. What drives one employee may not matter to another. Effective coaches take time to learn what inspires their team — whether it’s growth opportunities, recognition, or a sense of purpose. By connecting everyday work to larger goals and company values, leaders can unlock intrinsic motivation. Motivated employees are more likely to take initiative, push past obstacles, and grow within the organization. The Leader’s Role in Shaping Attitude Attitude determines how work gets done. A coach’s role is to cultivate a culture where positivity, resilience, and accountability thrive. This involves addressing challenges by considering setbacks as chances for learning and demonstrating emotional intelligence. Leaders who coach with empathy and encouragement set the tone for how their teams respond to pressure, change, and collaboration. From Feedback to Forward Momentum Coaching isn’t about occasional feedback — it’s about ongoing dialogue. Regular check-ins, clear communication, and actionable suggestions create an environment where employees feel supported and empowered. Effective coaching helps people take ownership of their growth, rather than waiting for direction. It turns feedback into fuel for development. Coaching in the Modern Workplace Hybrid teams, technological shifts, and generational changes have made coaching even more essential. Today’s leaders must be more intentional about building connections and offering guidance, especially when face-to-face time is limited. Virtual coaching tools can help, but the foundation remains the same: genuine curiosity, active listening, and consistent support. The Lasting Impact of a Great Coach Coaching done well builds more than just stronger employees — it builds stronger people. When leaders take the time to develop ability, ignite motivation, and nurture the right attitude, they create lasting value for individuals and the organization. As Coach Holtz wisely reminds us, performance is not just about what you can do — it’s about how and why you do it. Derek Brown is chief administrative officer at the Royal Law Firm, LLP and a retired, nine-year NFL veteran who also gives speeches on leadership and teamwork to accomplish goals. The Royal Law Firm LLP, is a woman-owned, women-managed corporate law firm certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288. Derek Brown wrote this article which was featured in BusinessWest. Click here to visit their website.

Good Faith Engagement with ADA Accommodations Makes all the Difference

June 19, 2025
Dooley v. Nevada Gold Mines, LLC Leroy Dooley appealed the United States District Court for the District of Nevada decision to grant Summary Judgment in favor of the Defendants. Dooley alleged in his original suit that Nevada Gold Mines, LLC “NGM” violated The Americans with Disabilities Act (ADA) under failure to accommodate when they made the decision to terminate his employment after his medical leave ended. Before having to go on medical leave, Dooley worked as a Process Maintenance Tech 6. The Tech 6 role is physically demanding. An essential function of the Tech 6 role included repairing ore-processing equipment, a task that required lifting and carrying up to sixty pounds, frequently twisting, and occasionally stooping, kneeling, and crawling. Dooley’s return to work form provided by his doctor indicated he could not lift more than ten pounds, carry more than fifteen pounds, bend, squat, or twist. The United States Court of Appeals, Ninth Circuit affirmed the lower court’s decision to grant Summary Judgement in favor of the Defendants. Restructuring His Position Dooley asserts that NGM could have restructured his position and reassigned repairing ore-processing equipment to other technicians. The court concedes that role restructuring is generally a reasonable accommodation however, an employer is not required “to exempt an employee from performing essential functions or to reallocate essential functions to other employees.” Dark, 451 F.3d at 1089. Dooley also alleged that NGM could have reduced his hours as part of an accommodation while NGM continued to assert that even working part time Dooley would need to repair ore-processing equipment, an action he was still not cleared to do by his doctor even on a part time basis. Request for Assistive Equipment Dooley argued that NGM should have allowed him to use existing workplace equipment like cranes, forklifts, and dollies as assistive equipment to perform his role. Providing such equipment could typically be an accommodation but Dooley provided no evidence that he could operate the referenced equipment with his medical restrictions. Reassignment Dooley alleges that he was denied reassignment as a reasonable accommodation because he was denied reassignment to an open lab position in April 2018. However, Dooley was only cleared to work in December 2018 when the position was no longer open. NGM had other roles open at that time, and it is an undisputed fact that Dooley turned reassignment to those positions down. Per Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155 (9th Cir. 1999) “there is no duty to create a new position for the disabled employee." Dooley had turned down the positions that would have qualified as a reasonable accommodation, there was no expectation for NGM to create additional roles to accommodate Dooley. Request for Additional Leave It is undisputed that NGM provided Dooley with paid disability leave for over a year, including two extensions. Because of the length of the accommodation, Dooley was required to show that additional leave would have allowed him to heal and “plausibly have enabled [him] adequately to perform [his] job. Humphrey, 239 F.3d at 1136. Dooley could not provide such documentation because his doctor indicated that the restrictions were permanent. Dooley does not allege that more leave would have healed him but that it would have provided more time for him to “bid on positions that would come open.” However, Dooley failed to present any evidence that such positions opened within a reasonable time after his termination that he would have been able to perform. Take Aways NGM was able to provide documentation that they fully engaged with Dooley’s requests in good faith and that the process was hindered by Dooley’s lack of engagement and documentation. Awareness of ADA obligations and processes is the best pre-emptive protection against a claim of discrimination. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.