Maryam Arfeen Quoted in Illinois Bar Journal Article, "Ready or Not, Cannabis Is Here"

01.09.20

Maryam Arfeen is quoted in the January Illinois Bar Journal in an article titled “Ready or Not, Cannabis Is Here.” “We are cautioning employers to be very careful when taking disciplinary actions against employees suspected of cannabis use,” is a snippet of what Maryam says.

The article, written by Ed Finkel, questions whether unresolved issues spell trouble for legalized recreational cannabis in Illinois.

Finkel writes: “As of Jan. 1, Illinois became the 11th state to legalize recreational cannabis. Many regulations remain to be written and much caselaw no doubt will follow, ensuring that attorneys in such areas as criminal and employment law will have plentiful opportunities to advise clients on cannabis-related matters in the months and years ahead.

“The Cannabis Regulation and Tax Act (the Act) allows people 21 and older to possess up to 30 grams of marijuana for recreational purposes…No one other than medical marijuana patients will be able to grow the plant in their homes, and growers and dispensaries that produce and distribute marijuana will need to be approved and licensed by the state. Employers and landlords can ban cannabis from their properties, and it cannot be smoked or otherwise consumed in public.

“Given the unsettled state of available drug tests, defense attorneys will be handling cases that turn on questions such as, “how to define under the influence?” Employment lawyers are figuring out how to counsel clients on what to do—and what not to do—regarding workplace policies and drug testing. Meanwhile, hundreds of thousands of cannabis-related expungement cases will begin working their way through the system.”

Employment Policies/Symptoms: Speech, Dexterity, Agility, etc.

Finkel writes: “The new cannabis law also is going to affect drug testing at work—and how employment attorneys will advise their employer clients.”

Maryam tells the author, Finkel, that Aronberg Goldgehn has been counseling employers to update policies so that, while they aren’t discriminating against workers who use marijuana on duty, they still maintain drug-free workplaces—especially for employers with federal contracts.

“We are cautioning employers to be very careful when taking disciplinary actions against employees suspected of cannabis use,” Maryam says. “A positive test result by itself is not enough. It requires evidence of impairment on the job, which is kind of fuzzy. Employers need to have a good-faith belief that the employee was impaired.” As such, they need to train supervisors on the various symptoms of impairment listed in the legislation. “They should document and obtain witness statements where possible,” she adds.

Hazy Hiring & Testing Dilemmas

Maryam tells the article author that employers may continue with random drug testing that is not discriminatory and allows for employees to contest a positive result. “It’s a challenging landscape right now for employers. At a minimum, they should clearly articulate that on-duty marijuana use is strictly prohibited,” she says.

Employers also will be affected by the new expungement provisions, because the Illinois Human Rights Act prohibits them from discriminating against those with expunged or sealed criminal records, Maryam says. Given a backlog of roughly 800,000 records, “it’s not likely that all cannabis-related arrests will be expunged or sealed by the state in time,” she says. “There may be employers trying to hire someone but and a conviction from a background check. If it’s marijuana-related, they cannot discriminate against that applicant for that reason.”

Predictions

As for the future, Maryam tells the author that she expects to see claims from applicants alleging discrimination based on unexpunged records and from employees disciplined after a random test turns up a positive result. Employees also might protest that they weren’t given a reasonable opportunity to contest a positive drug test result, as the law requires (the legislation does not define “reasonable,” she notes). Employers will need to be updated on background checks and what it means for an employee to have a “reasonable” opportunity to contest.

About Maryam Arfeen

Maryam represents an expansive range of clients in litigation in both state and federal courts. She has represented professionals, companies and their insurers in commercial litigation, employment litigation, medical malpractice and personal injury litigation. She also has experience with civil rights, whistleblower and contract disputes.

Maryam participates in all phases of litigation, including drafting pleadings, preparing discovery, conducting and defending depositions, and preparing motions and briefs. In addition to appearing in court, she has represented clients at arbitrations and mediations.

She is a Member of the Illinois State Bar Association’s Standing Committee for Racial and Ethnic Minorities in the Law. In December 2019, she was accepted into the Illinois State Bar Association’s inaugural Leadership Academy. Maryam is one of 20 attorneys statewide accepted into the inaugural group.



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