PREPARED BY Linda Wong Carol C. Lumpkin Stephanie N. Moot Ami N. Wynne

1. The Americans with Disabilities Act and Updates Around Reasonable Accommodations Including Marijuana Use PREPARED BY Linda Wong Carol C. Lumpkin Stephanie N. Moot Ami N. Wynne EMPLOYMENT LAW 15th ANNUAL CAREER STRATEGIES CONFERENCE – SEPT. 25, 2019

2. LINDA WONG PRESENTERS CEO and Co-Founding Partner of Wong Fleming LINDA WONG is CEO and Co-Founding Partner of Wong Fleming, P.C., and Chair of the Firm’s Employment and Labor Law Practice Group. She concentrates her practice on employment, insurance defense, intellectual property, creditor’s rights, real estate and commercial litigation and has appeared in federal and state courts, and administrative tribunals, in jurisdictions around the country. She has handled many jury trials and has been an effective advocate in obtaining the dismissal or early resolution of contested litigation. Ms. Wong is a frequent presenter at national and local bar associations and a trainer and consultant on employment law, for major corporations and public institutions, including the judiciary. She has presented or been a moderator for continuing legal education panels on hot topics in employment law, family leave, disability discrimination, diversity in the courtroom, mediation, the use of experts, managing a law practice and jury selection. CAROL C. LUMPKIN Partner at K&L Gates CAROL C. LUMPKIN is an equity partner and practice group coordinator at K&L Gates LLP. Carol’s established practice in employment and commercial litigation encompasses representation of companies ranging in size from small to international in the manufacturing, retail, health care, service, hotel, professional sports teams, and insurance industries. Her experience includes all facets of employment discrimination, workplace harassment litigation, workplace violence response strategies, and public accommodation under the Americans with Disabilities Act. Carol also conducts investigations and trainings in Spanish for her clients. Carol handles defamation, non-competition, civil theft, misappropriation of trade secrets, fraud, and corporate compliance matters. She frequently addresses issues related to distribution agreements, breach of warranties, and commercial loans. Her diverse practice also includes client representation with regard to federal government investigations in multiple jurisdictions. Carol received her Bachelor of Science degree from Florida State University and her Juris Doctor from the University of Miami. STEPHANIE N. MOOT Partner at K&L Gates STEPHANIE MOOT is a partner at K&L Gates’ Miami office, where she focuses her practice on Title III ADA public accommodations. She regularly defends lawsuits for clients across various industries, and has handled a broad spectrum of disability discrimination matters involving architectural and operational barriers to access. Additionally, Stephanie works with clients to develop effective strategies for compliance and personnel training programs. With her knowledge and experience, she advises clients on hot-button ADA issues such as website accessibility, point-of-sale devices, auxiliary aids and services, and service animals. Stephanie’s secondary practice involves personal injury defense. She handles high-exposure cases involving permanent injuries and disability for commercial clients. She also works with industry experts to provide risk assessments and minimize potential exposure to damages. Stephanie received her Bachelor of Arts in business administration from the University of Florida and her Juris Doctor from the University of Notre Dame. AMI N. WYNNE Partner at Sidley AMI WYNNE is Partner, Labor, Employment and Immigration Corporate Governance, Executive Compensation and global co-leader of employment at Sidley Austin LLP in Chicago. She regularly defends employers in employment discrimination, restrictive covenant, contract disputes and employment-related cases in state and federal courts. These litigation matters include both individual and class claims under Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act, Sarbanes-Oxley, Dodd-Frank, the Fair Labor Standards Act, the Federal Rail Safety Act and other employment statutes. She also handles employment matters in arbitrations and before administrative agencies, such as the Equal Employment Opportunity Commission (EEOC), Office of Federal Contract Compliance Programs, and various state departments of labor and fair employment agencies. Drawing on her experience litigating disability and accommodation matters, Ami assists clients with issues under the Americans with Disabilities Act related to public accommodations and accessibility for individuals with disabilities, with an emphasis on matters arising related to websites and other electronic media.

3. 1“DISABILITY” AS DEFINED BY THE ADA 2ADA REASONABLE ACCOMMODATION REQUIREMENTS 3-4 MARIJUANA: NOW AND THEN 5 RECREATIONAL VS. MEDICINAL USE 6 FEDERAL LAW PROHIBITS MARIJUANA POSSESSION AND DISTRIBUTION 7 STATES THAT ALLOW MEDICINAL AND/OR RECREATIONAL USE 8 STATES WHERE USE IS PROHIBITED 9 CBD REGULATIONS 10 NEW JERSEY BILL ROADMAP OF TOPICS 11CASE STUDIES – EMPLOYMENT 12 ADA TITLE III 13 CASE STUDIES – PUBLIC ACCOMMODATIONS 14 PENDING LEGISLATION

4. (1) Disability The term "disability" means, with respect to an individual (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)). ”DISABILITY” AS DEFINED BY THE ADA “ 42 U.S. Code § 12102 - Definition of disability

5. For purposes of paragraph (1)(C): (A) An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. (B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. ”DISABILITY” AS DEFINED BY THE ADA “ 42 U.S. Code § 12102 - Definition of disability

6. ADA REASONABLE ACCOMMODATIONS REQUIREMENTS Step 1 Identify Need Step 2 Interactive Process Step 3 Accommodate Need The employee requests a “reasonable” accommodation. If no accommodation was specified, the employee and employer explore options together. Common accommodations: • Make existing facilities accessible • Modified work schedules • Medical leave • Work at home • Changing tests, training or policies Employee expresses their need for an adjustment or change at work for a reason related to a medical condition. • Employer is aware of employee’s disability. • The employer has the right to request additional medical information related to the condition. • The employee does not need to express a condition that is obvious (ex. blindness). The employer grants the request, or if there are other accommodations that would effectively meet the employee’s needs, the employer is free to choose among the other accommodation options. Employers must provide the necessary accommodations within reasonable amount of time. The duty to provide accommodation is ongoing.

7. When is the employer not obligated? ADA REASONABLE ACCOMMODATIONS REQUIREMENTS The only exception to an employer’s obligation to provide reasonable accommodation is that no such change or modification is required if it would cause “undue hardship” to the employer. This must be assessed on a case-by-case basis. Due to the related job requirements, employees in safety-sensitive positions or federally regulated industries have been prohibited in some states to use marijuana to for a medical condition.

8. MARIJUANA: NOW AND THEN

9. MARIJUANA: NOW AND THEN

10. U.S. marijuana trends at-a-glance. RECREATIONAL VS. MEDICINAL USE OVER 2 MILLION 14.6% Number of legal medical marijuana patients in the U.S. (May 2018) Percent of adults reported using marijuana during the previous year, a 2018 survey found. 3.5 MILLION AGES 18 - 34 Estimated number of legal medical marijuana users if legal in all states Those between these ages reported the highest use of cannabis. Use of cannabis was inversely related to age. 6 in 10 Americans said the use of marijuana should be legalized in 2018.

11. FEDERAL LAW PROHIBITS MARIJUANA POSSESSION AND DISTRIBUTION MARIJUANA REMAINS ILLEGAL UNDER FEDERAL LAW Although many states have legalized marijuana for medicinal and/or recreational use, it remains classified as a Schedule I drug under the Controlled Substances Act (CSA). Schedule I drugs, substances or chemicals are defined as drugs with no currently accepted medical use and high potential for abuse. Other Schedule I drugs include: • Heroin • Lysergic acid diethylamide (LSD) • 3,4-methylenediosymethamphetamine (ecstasy) • Methaqualone • Peyote

12. FEDERAL LAW PROHIBITS MARIJUANA POSSESSION AND DISTRIBUTION Sentencing guidelines for possession of marijuana: First offense: a misdemeanor involving up to a year of incarceration and a $1,000 fine, Second offense: a misdemeanor involving a mandatory minimum of 15 days (and up to two years) of incarceration and a $2,500 fine, and Third offense or more: a misdemeanor or felony involving a mandatory minimum of 90 days (and up to three years) of incarceration and a $5,000 fine. 

13. FEDERAL LAW PROHIBITS MARIJUANA POSSESSION AND DISTRIBUTION Sentencing guidelines for distribution of marijuana: Less than 50 plants or 50 kg: felony involving up to five years of incarceration and a $250,000 fine, 50-99 plants or kilograms: felony involving up to 20 years of incarceration and a $1,000,000 fine, 100-999 plants or kilograms: felony involving 5-40 years of incarceration and a $500,000 fine, and 1,000 or more plants or kilograms: felony involving between 10 years to life and a $1,000,000 fine. Federal authorities are most concerned with high-volume distributors. The gifting of small amounts of marijuana is treated as possession.

14. STATES THAT ALLOW MEDICINAL AND/OR RECREATIONAL USE Laws in these states permit personal recreational use of marijuana by adults 21 and older. Marijuana legalization means you can’t be arrested, ticketed, or convicted for using marijuana if you follow the state laws as to age, place, and amount for consumption. However, you can still be arrested for selling or trafficking marijuana if you aren’t following state laws on licensure and taxation. Recreational use is legal

15. STATES THAT ALLOW MEDICINAL AND/OR RECREATIONAL USE The states in yellow represent those that have reduced the criminal charges one can receive from the possession of small amounts of marijuana. The state have either have repealed or amended laws to make certain acts, criminal, but no longer subject to prosecution. Possession may be treated similar to a minor traffic violation. Recreational use is legal Reduced criminal charges (Decriminalization)

16. STATES THAT ALLOW MEDICINAL AND/OR RECREATIONAL USE Laws in these states permit medicinal use of marijuana. There are typically limits placed on the number of ounces of marijuana and marijuana plants that can be owned. Some states may have a 30-day or 60-day supply limit, which varies by patient. Medicinal use is legal

17. STATES WHERE USE IS PROHIBITED • Alabama • Georgia • Idaho • Indiana • Iowa • Kansas • Kentucky • Mississippi • Nebraska • North Carolina • South Carolina • South Dakota • Tennessee • Texas • Virginia • Wisconsin • Wyoming

18. STATES WHERE USE IS PROHIBITED The aforementioned states enforce strict penalties for the possession of marijuana. Example 1 - Penalties for the Possession of Marijuana in Texas

19. CBD REGULATIONS Cannabis a genus of flowering plants in the family Cannabaceae. Low THC (<0.3%) = Hemp High THC (5%-35%) = Marijuana High levels of CBD Typically lower CBD levels Hemp and its derivatives (including CBD) were removed from the definition of cannabis under the Controlled Substances Act (“CSA”). While the research on CBD is still at its relative infancy, some claim it may have a potential role in treating common health issues such as anxiety, depression, acne and heart disease. Marijuana remains illegal under the Controlled Substances Act (“CSA”). Although the low amounts of CBD found in marijuana can also be used to produce CBD oil, only hemp-derived CBD oil is legal.

20. CBD REGULATIONS Regulation of Hemp and CBD The 2018 U.S. Farm Bill effectively decriminalized the production or use of hemp and cannabis derivatives with lower than .3% THC concentration on a dry weight basis. Despite hemp and its derivatives (including CBD) being removed, it is subject to oversight and regulation by • The U.S. Department of Agriculture • The Food and Drug Administration • The U.S. Department of Health and Human Services States are permitted to create their own rules, albeit subject to the review and approval of the Department of Agriculture. Although these states may make more restrictive rules than those approved by the Department of Agriculture, such states may not prohibit the interstate shipment of hemp that is lawfully produced in another state.

21. CBD REGULATIONS “[It remains] …unlawful to introduce food containing CBD, or the psychoactive compound THC, into interstate commerce, or to market CBD or THC products as dietary supplements.” -Scott Gottlieb, FDA The FDA is acutely concerned that patients might substitute CBD oil, if introduced commercially, in place of medicines that have been approved to prevent, treat or cure certain diseases and conditions. There is not enough clinical research for the health claims associated with CBD for the FDA to approve CBD to be marketed and sold for its intended therapeutic benefits.

22. CBD REGULATIONS The FDA identifies the following three areas of potential liability through regulatory enforcement actions associated with the sale and distribution of CBD: • CBD products marketing claims of therapeutic benefits, or with any other disease claim; • selling or marketing CBD products as food or dietary supplements; and/or • selling or marketing CBD for human consumption without having sought pre-approval through the generally recognized as safe pathway. “CBD successfully stopped cancer cells in multiple different cervical cancer varieties” “Cannabidiol may be effective for treating substance use disorders” “For Alzheimer patients, CBD is one treatment option that is slowing the progression of that disease” -claims found offensive by the FDA.

23. “New Jersey Cannabis Regulatory and Expungement Aid Modernization Act” – (No. 2703) NEW JERSEY BILL Key Objectives • Possession or use of one ounce or less (28.38 grams) would be legal. • Individuals age 21 or older would be able to consume, purchase or participate in the cannabis market at any level (after guidelines and restrictions are written by a 5-person cannabis regulator panel - at least a 6-month process). • As soon as 6 months after the bill’s passage, retail sales could begin. • Some medical marijuana dispensaries (who already hold licenses) could expand into retail as long as enough product is available to serve patients. • Expungement system to start clearing records of those arrested or convicted of low-level marijuana crimes in the past. • Smoking or consuming cannabis products in public would remain prohibited. Use would be limited to private homes, consumption areas provided by retailers and permitted by hotels in up to 20% of guest rooms. • Delivery of product must be made in person by a certified handler, with delivery persons required to keep a log of every sale. • Home-grown marijuana for personal use remains prohibited.

24. NEW JERSEY BILL Governor Phil Murphy approves the Bill to be signed into law. The vote is scheduled for March 25, 2019. Due to the lack of support in the Senate, the vote is delayed until May 13, 2019. Outcome TBD.

25. NEW JERSEY BILL New Jersey Medical Marijuana Program Expansion In May of 2019, the state announced it would increase the number of permits for medical marijuana providers from 12 to 108. • At this time, there was a count of over 47,500 medical marijuana patients. This was projected to increase by up to 4,950 patients per month. • Previous permits awarded would allow an alternative treatment center (ATC) to perform cultivation, manufacturing, and dispensing all under one permit achieved through a singular application. A separate application is now required for each area of production, although applicants may submit up to 3 applications. • The Request for Applications (RFA) sought 24 cultivations endorsements, 30 manufacturing endorsements, and up to 54 dispensary endorsements, all spread across north, central, and southern regions of New Jersey. • The permit applications were made available starting July 1, 2019, with a deadline of August 15, 2019.

26. CASE STUDIES EMPLOYMENT

27. CASE STUDIES - EMPLOYMENT Wild v. Carriage Funeral Holdings, Inc. Mar 27, 2019 | New Jersey Appellate Division, Superior Court of New Jersey | Docket No. L-0687-17 | LEXOLOGY The plaintiff in Wild was a funeral director who had been using medical marijuana to manage cancer-related pain. After returning to work following a car-accident-related-injury, the plaintiff informed his employer that he had been using medical marijuana to treat his cancer. He explained that his doctor did not perform a drug test after his car accident because he did not appear impaired and the doctor already knew that a test would reveal the presence of marijuana metabolites. The funeral home then administered its own drug test, for which the plaintiff tested positive for marijuana metabolites and was subsequently terminated. At first, the preceding trial court had found that the plaintiff did not state a claim on which relief could be granted based on the provision of the Compassionate Use Act, which states “nothing in [the Compassionate Use Act] shall be construed to require… and employer to accommodate the medical use of marijuana in any workplace.” The Appellate Division, analogizing this provision to the first law of thermodynamics, found that it “neither creates not destroys rights and obligations” and that the trial court was thus wrong in determining that the Compassionate Use Act foreclosed an employee from asserting a cause of action under the NJLAD.

28. CASE STUDIES - EMPLOYMENT Callaghan v. Darlington Fabrics Corp. May 23, 2017 | Superior Court of Rhode Island, Providence | 2017 R.I. Super. LEXIS 88 A fabrics company refused to hire a job applicant after she told them that she held a medical marijuana card and could not pass a drug test. The court ruled that the employer violated Rhode Island’s medical marijuana law when it refused to hire her.

29. CASE STUDIES - EMPLOYMENT Chance v. Kraft Heinz Foods Co. Dec 17, 2018 | Superior Court of Delaware, Kent | 2018 Del. Super. LEXIS 1773 An employee sued his former employer, alleging that it violated Delaware’s Medical Marijuana Act (DMMA) by firing him for a positive drug test, proceeded with most of his claims, as ruled by the Delaware Superior Court. The court held that the Federal Controlled Substances Act (CSA) did not preempt the anti-discrimination provision of the DMMA. Moreover, it determined that a private right of action was implied by the state law. However, the plaintiff’s claims under the ADA were not timely filed and the defendant’s motion to dismiss was granted in part.

30. CASE STUDIES - EMPLOYMENT Cristina Barbuto v. Advantage Sales and Marketing, LLC & another July 17, 2017 | Supreme Judicial Court of Massachusetts | 477 Mass. 456 The Massachusetts high court addressed whether an employer must accommodate medical cannabis use, since state law permits medical marijuana use and prohibits disability discrimination. The employer offered a job applicant a position as an entry-level salesperson that was conditioned on passing a drug test. During the onboarding process, the applicant mentioned that she suffered from Crohn’s disease and used medical marijuana based on her physician’s written certification to treat it. She said she did not use marijuana daily and would not consume it before or during work. However, she was fired shortly after she started the job because her drug test came back positive for marijuana. The court held that an exception to the employer’s drug policy to permit offsite marijuana use may be a reasonable accommodation where the employee’s physician determines that marijuana is the most effective treatment for the employee’s disability and that any alternative medication permitted by the employer’s drug policy would be less effective.

31. TITLE III UNDER THE ADA ADA TITLE III TITLE III PROHIBITS DISABIILITY DISCRIMINATION BY PLACES OF PUBLIC ACCOMMODATION

32. CASE STUDIES PUBLIC ACCOMMODATIONS

33. CASE STUDIES - PUBLIC ACCOMMODATIONS Whitmire v. Wal-Mart Stores, Inc. Feb 07, 2019 | United States District Court for the District of Arizona | 2019 U.S. Dist. LEXIS 20049 Walmart fired an employee who was a medical marijuana cardholder due to a positive drug test. The judge ruled Walmart discriminated against the worker. The employee, Carol Whitmire, obtained the card in 2013 and began smoking the drug before bed as both a sleep aid and treatment for chronic pain. In 2016, she injured her wrist on the job. She filed an incident report with Walmart the same day, but did not seek medical attention at the time. Two days later she notified HR of continued swelling and pain in her wrist. A personnel coordinator directed her to an urgent care clinic the next day for a wrist examination and post-accident urine drug test. The drug screen tested positive for marijuana metabolites and the employer concluded that "upon reasonable belief, [her] positive test result for marijuana indicated that she was impaired by marijuana during her shift that same day." Whitmire was suspended for the positive test and eventually fired. Whitmire filed suit, alleging she was wrongfully terminated and/or discriminated against in violation of various state laws. A federal district court judge granted sua sponte summary judgment in part for the plaintiff on the question of Walmart's liability for discrimination under the Arizona Medical Marijuana Act (AMMA). "Without any evidence that Plaintiff 'used, possessed or was impaired by marijuana' at work, ... it is clear that Defendant discriminated against Plaintiff in violation of A.R.S. § 36-2813(B)(2) of the AMMA by suspending and then terminating Plaintiff solely based on her positive drug screen," the judge said.

34. PENDING LEGISLATION

35. Best Practices for Website Accessibility(Carol C. Lumpkin, Esq., and Stephanie N. Moot, Esq.)

36. Topics: Background Trends in Website Accessibility Litigation Federal Circuit Court Opinions to Know Best Practices klgates.com

37. What is Website Accessibility? • Website accessibility is not defined under the ADA • It is generally understood to mean the practice of making websites accessible to persons with disabilities • Navigate, understand, interact • Incorporate features that enhance access to websites and remove barriers that prevent access klgates.com

38. Statutes that May Require Accessibility • Title III of the Americans with Disabilities Act • Guarantees individuals with disabilities the full and equal enjoyment of the goods and services of a place of public accommodation • Must furnish appropriate auxiliary aids and services to ensure effective communication • Injunctive relief, declaratory relief, attorneys’ fees and costs • State Anti-Discrimination Laws • The above, plus damages and penalties/fines • Section 504 of the Rehabilitation Act • Entities receiving federal funding • The above, plus damages klgates.com

39. No Website Accessibility Regulations • In 2010, DOJ started rulemaking process • DOJ delayed target date for regulations multiple times • July 2017, website accessibility regulations placed on the “inactive” list • December 2017, DOJ withdrew 2010 notice of proposed rulemaking klgates.com

40. Web Content Accessibility Guidelines 2.0 WCAG 2.0 Levels A and AA: currently the go-to standard for website accessibility Developed by the W3C Government Agencies (DOJ, SEC, DOT, OFCCP and Access Board) have all utilized WCAG 2.0 AA • Four principles of accessibility: perceivable, operable, understandable, and robust • Each principle has a set of guidelines • Success criteria : Level A (must satisfy), AA (should satisfy), AAA (may satisfy) • Specific technical methods to meet and/or test the success criteria klgates.com

41. WCAG 2.1 Includes WCAG 2.0’s success criteria Adds 17 success criteria Intended to address users with cognitive or learning disabilities, users with disabilities on mobile devices, and users with low vision klgates.com

42. Trends in Website Accessibility Litigation

43. Trends in Website Accessibility Litigation • Increasing in number: • Lawsuits • Jurisdictions • Plaintiffs and plaintiff’s firms • Increasing in scope: • Third party websites • Mobile apps • Trespass claims • False advertising claims klgates.com

44. Hotbeds for Website Accessibility Lawsuits Illinois New York Pennsylvania Massachusetts Virginia Georgia California Florida klgates.com

45. Court Opinions To Know

46. Haynes v. Hooters of America, LLC, No. 17-131709 (11th Circuit) Applies to AL, FL, and GA Settlement agreement does not preclude subsequent lawsuit Ongoing remediation is not enough Similar to Five Guys opinion from S.D.N.Y. klgates.com

47. Haynes v. Dunkin’ Donuts LLC, No. 18-10373 (11th Circuit) The ADA prohibits tangible and intangible barriers Plaintiff’s alleged inability to obtain store locations and purchase gift cards on Dunkin Donuts’ website was sufficient to state an ADA claim that he was denied access to Dunkin Donuts’ physical stores featured on the website Relied on Rendon, where the 11th Circuit found that a telephone selection process screened out individuals with disabilities from competing on Who Wants to be a Millionaire. klgates.com

48. Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Circuit) - Pending District Court opinion: • Inaccessible website per WCAG • Responsible for linked third-party sites • Must enhance mobile apps klgates.com

49. Robles v. Domino’s Pizza, LLC, No. 17-55504 (9th Circuit) Takeaways: The ADA applies to the services of a “place of public accommodation.” It requires Domino’s to provide “effective communication” through the provision of “auxiliary aids and services.” Applying the ADA to website/mobile apps does not violate due process.  Plaintiff did not seek to impose liability based on WCAG 2.0.  Plaintiff argued that WCAG 2.0 was the appropriate remedy. The lack of website accessibility regulations does not preclude liability.  The Constitution does not require Congress or the DOJ to “spell out” how Domino’s should make its website accessible. The Court found that it could competently apply the ADA to the facts of this case, without the need for DOJ regulations. klgates.com

50. Best Practices