Before getting started on the blog entry of the day, I would be remiss if I didn’t note that the Cubs are back in it! Winning two games against a very tough Cleveland team in Cleveland with a likely Hall of Fame manager is going to be very tough. Go Cubs!
Last week, a person posted a query about just how do you deal with service animals/emotional support animals in the workplace. All the hullabaloo about service animals and the implementing regulations, deal with title II and title III of the ADA, and I have written about this on several times previously. For example, here. Title I of the ADA deals with employment and the implementing regulations come from the EEOC and not the DOJ. When the person wrote me the query, they mentioned that they could not find a lot out there, save for this publication from the Job Accommodation Network talking about service animals in the workplace from the Job Accommodation Network’s accommodation and compliance series. When I did my own research, I found two cases discussing service animals in the workplace, but that is about it. The two cases I found are: McDonald v. Department of Environmental Quality, 2009 MT 209 (2009); and Branson v. West, 1999 U.S. Dist. LEXIS 7343 (N.D. Ill. May 11, 1999).
The Job Accommodation Network publication is quite good, and I thought I would track it generally. As usual, the blog entry is divided into categories and they are: must an employer automatically allow employees with disabilities to bring their service animal to work?; what kind of documentation can an employer ask for when it comes to a service animal?; Who is responsible for taking care of the service animal at work?; Do employers have to create a relief area for service animals for an employee with a disability who uses a service animal in the workplace?; Do employers have to allow employees without disabilities to train a service animal in the workplace?; What does title II or title III of the ADA have to do with service dogs in employment?; and what about emotional support animals in the workplace? The reader is free to concentrate on any or all of the categories.
Must an Employer Automatically Allow Employees with Disabilities to Bring Their Service Animal to Work?
If it is a service animal (a dog, and possibly a miniature horse, engaged in recognition and response) and you are in Montana, the answer is absolutely yes. Keep in mind, the Montana decision borrows heavily from interpretation of the ADA and the Rehabilitation Act. So, the reasoning of the Montana Supreme Court would apply to any service dog in the employment situation under the ADA or the Rehabilitation Act. Plaintiffs would certainly want to cite this case and its reasoning as persuasive authority for why service dogs should be freely allowed at the worksite. The Montana Supreme Court’s argument for having to allow service dogs in the workplace automatically are as follows:
- An employee with a disability has the right to perform her job duties in reasonable comfort and enjoy the same freedom of movement as employees without disabilities.
- A reasonable accommodation requirement is best understood as a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated.
- If a reasonable accommodation is available to an employer that would plausibly enable the employee with a disability to adequately perform his or her job, the employer is liable for failing to attempt that accommodation.
- The duty to accommodate also includes making modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.
- The duty to accommodate also includes providing an opportunity for the employee with a disability to attain the same level of performance as the average similarly situated employee without a disability.
- Fundamentally, an employer is obligated not to interfere either by action or inaction with an employee with a disability efforts to pursue a normal life.
- The Rehabilitation Act calls for reasonable accommodations that permit individuals with with disabilities to lead normal lives, not merely accommodations facilitating the performance of specific employment tasks.
- An employee is entitled to a reasonable accommodation if that accommodation could assist the employee in performing her job duties or alleviate barriers to her ability to enjoy equal benefits, privileges, and opportunities of employment.
- An employee is not required to endure an unaccommodated condition to the absolute breaking point before the employee is deemed to be in need of an accommodation.
- A service animal is nothing more than an assistive device for an employee with a disability and therefore, needs to be treated the same as other assistive devices would be. When the accommodation is granted to an employee using an assistive device, it is an accommodation to the employee and not to the device itself.
- The general mandate of the ADA is accessibility for all persons with disabilities.
- The implementing regulations of title II of the ADA means an employer may be required to modify a floor surface so that an otherwise qualified employee with a disability can use her service animal effectively in the workplace.
- The functionality of the assistive device relates to the reasonableness of the necessary accommodation and not whether the employer has a duty to provide one in the first place.
- The duty to make reasonable accommodations does not end with allowing the assistive device through the front door. That duty also requires the employer to address any barriers to the employee’s ability to actually use that device effectively in the workplace.
If it is a service animal and you are in the Northern District of Illinois, the dog, and possibly a miniature horse, theoretically may not have to be allowed but as a practical matter will have to be allowed for the following reasons. Keep in mind, Branson v. West is a Rehabilitation Act case, but since governmental entities invariably accept federal funds, the Rehabilitation Act will apply.
- 501 of the Rehabilitation Act imposes an affirmative duty upon a federal agency to structure their procedures and programs in order to ensure that individuals with disabilities are afforded equal opportunity in both job assignment and promotion.
- A federal agency must grant a reasonable accommodation request making it possible for an employee with a disability to: perform the essential functions of the job in question; pursue therapy or treatment for their disability; or enjoy the privileges and benefits of employment equal to those enjoyed by employees without disabilities.
- Whether a service dog is reasonable and must be required by the employer under the Rehabilitation Act is a fact intensive inquiry requiring consideration of the costs, efficacy, and benefits of each particular situation.
- It is conceivable that failure to allow a service dog to be used by an employee could generate an equal protection claim. As pointed out by the court in Branson, denial of the service dog would be subject to a rational basis standard (see Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001).
- The applicable regulation implementing §501 of the Rehabilitation Act contain three elements: the employee must be a qualified individual with a disability; the employer must make reasonable accommodations for the known disability; and the accommodation does not have to be made if it imposes an undue hardship on the operations of the employer.
- An accommodation is not reasonable if it either requires a fundamental alteration in the nature of the program or imposes undue financial and administrative burdens.
- A service dog can benefit an employee in a myriad of different ways, both psychologically and physically.
- The Rehabilitation Act calls for reasonable accommodations permitting individuals with disability to lead normal lives, not merely accommodations facilitating the performance of specific employment tasks. That is, the duty of reasonable accommodation is satisfied when the employer does what is necessary to enable the worker with a disability to work in reasonable comfort.
- Requesting exhaustive documentation for a request for a service dog, particularly where that documentation relates to specific job duties rather than focuses on how the employee would utilize the service dog in the performance of her job duties, is inappropriate.
What Kind of Documentation Can The Employer Ask for Related to a Service Animal?
- An employer certainly has the right to request reasonable documentation that an accommodation is needed (enough information so the employer can understand why the service animal is needed and what it does for the person. Also, that the service animal is trained and will not disrupt the workplace). However, excessive documentation requests (see Branson v. West, for example), is a no no. As pointed out in the Job Accommodation Network publication, reasonable documentation may not always include a note from a doctor or some other healthcare professional. It might just come from the appropriate provider of the service i.e. whoever trained the service animal.
Who Is Responsible for Taking Care of a Service Animal at Work?
- The employee.
Do Employers Have to Create a Relief Area for Service Animal for an Employee with a Disability who Uses a Service Animal in the Workplace?
- Just about always there is going to be a place outside close to the workplace where the animal can relieve itself.
- I completely agree with the Job Accommodation Network that an employer faced with the request to create a relief area for a service animal should consider doing so because otherwise the employee is not going to be able to use his or her service animal at work. Therefore, the employer would then wind up denying the employee’s right to use an assistive device, in this case a service animal, of his or her own choice in order to compensate for his or her disability. That would certainly create a problem of ADA compliance.
- IV2 is also good preventive law for title II and title III compliance for the same reason.
Do Employers Have To Allow Employees to Train Service Animals in the Workplace?
- An employer would certainly have valid concerns about potential disruptions in the workplace due to the service animal being in training. However, the critical question here is going to be just what does your state law say on the matter.
What Does Title II or Title III of the ADA Have To Do with Service Dogs in Employment?
- If you are in the 11th Circuit, title II of the ADA does apply to employment. Admittedly, this case is an outlier, but even so, it is still good law in the 11th Accordingly, an employer in the 11th Circuit will definitely want to automatically allow a service dog to be used by their employee.
- Title II of the ADA applies to nonfederal governmental entities and the implementing regulations makes clear that service dogs are allowed everywhere except for certain areas, such as operating rooms etc., where it is just not possible. So, a nonfederal governmental entity that does not allow an employee to have a service dog puts itself in a situation where it has to allow service dogs for non-employees, but then has to defend why it will not allow service dogs for employees. Such a position is not defensible.
- VI2 applies to title III of the ADA in the same way. So, with respect to title III, a place of public accommodation that does not allow an employee to have a service dog puts itself in the situation where it has to allow service dogs for non-employees, but then has to defend the why it does not allow service dogs for employees. Again, not a defensible position.
What About Emotional Support Animals (Therapy, Companion, and Social/Therapy), in The Workplace?
- Emotional support animals are animals that are not engaged in recognition and response. Emotional support animals are not necessarily dogs or even miniature horses.
- The EEOC implementing regulations contain nothing about emotional support animals.
- An employer certainly has a justifiable concern that an animal be sufficiently trained so as to be not disruptive to the workplace.
- Branson and McDonald both have reasoning within them that might extend to emotional support animals.
- On the other hand, an excellent defense to VII4, is the flip side of VI2-3. That is, allowing therapy, companion, and social/therapy animals would mean that the employer would be completely justified in prohibiting non-employees from using those animals to access their facilities, whether it be non-federal governmental entities or places of public accommodation, but would have to allow it for their employees. The logic of that proposition doesn’t make a lot of sense and a court might be receptive to that.
- Do not make assumptions that the emotional support animal, assuming it is a dog, or possibly a miniature horse, is not engaged in recognition and response. If the dog is engaged in recognition and response, then despite what the employee calls the dog, the dog is a service animal.
- Faced with a request by an employee to use an emotional support animal, the employer will definitely want to engage in the interactive process to do whatever it can to allow the employee to get to the same starting line as employees without disabilities short of allowing the emotional support animal. The interactive process combined with the argument listed in ¶ 5 of this section would make for a very strong defense.
Of course, none of this is a substitute for legal advice, and a knowledgeable lawyer in this area should be consulted whenever necessary.