Animals in the workplace: knowing the rules

Grant T. Collins, BridgeTower Media Newswires

Recently, Delta Air Lines made headlines when it announced that it was tightening its rules for transporting service and support animals in an effort to reduce misbehavior by dogs and other creatures that air carriers are required by law to allow on board. According to Delta, customers were attempting to fly with comfort turkeys, gliding possums, snakes, and spiders. The new rules were designed to rein in misbehavior by these flying creatures.

For employers, the only thing scarier than flying snakes and spiders is the thought of employees showing up to work with them. Fortunately, the accommodation standards governing air carriers like Delta differ from those governing employers under the Americans with Disabilities Act. Nevertheless, employers are too often confounded by accommodation requests relating to animals.

While the exact contours of the law are not entirely clear, there are some general guidelines that will help any employer assessing an accommodation request relating to having an animal at work.

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Service animals vs. ‘support’ animals

A “service animal” is specifically defined by a portion of the ADA regulations applicable to “public accommodations.” Specially, it means a dog that is specifically trained to do work or perform tasks for the benefit of an individual with a disability. 28 C.F.R. § 36.104. That is, the animal is trained do work or perform tasks for the benefit of an individual with a disability, such as a guide dogs for visually impaired people, signal dogs for hearing-impaired people, or psychiatric service dogs.

The definition of “support animal” is much less precise. It generally includes emotional support animals, comfort animals and therapy animals. Unlike a service animal, support animals are not limited to dogs, they are not required to have specific training, and their work or tasks need not be directly related to the individual’s disability.

The distinction is critical because the ADA does not specifically address “support” animals. This is not to say that employers have no accommodation obligation with respect to “support” animals. It means only that the law is unclear in this area and employers would be best-served to follow the interactive process.

The “interactive process” is a mechanism employers and employees use to determine whether there is an accommodation that will allow a particular disabled individual to perform the essential functions of a particular job. It may be useful to think of the interactive process as a dialogue with an employee about a specific issue — what he or she needs to perform the essential functions of a particular job and whether the employer can or will provide it.

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Accommodating employees with service animals

While every accommodation request should be addressed via the interactive process, requests related to service animals are more likely to be considered a reasonable accommodation. In fact, the comments from the original EEOC regulations following the ADA’s passage in 1992, specifically mention “guide dogs” as a possible accommodation:

It may also be a reasonable accommodation to permit an individual with a disability the opportunity to provide and utilize equipment, aids or services that an employer is not required to provide as a reasonable accommodation. For example, it would be a reasonable accommodation for an employer to permit an individual who is blind to use a guide dog at work, even though the employer would not be required to provide a guide dog for the employee. 56 Fed. Reg. 35726 (July 26, 1991).

Courts have generally agreed that failing to allow service dogs into the workplace may violate the employer’s accommodation obligation under the ADA.

For example, in Branson, M.D. v. West, 1999 U.S. Dist. LEXIS 7343 (N.D. Ill. May 11, 1999), the VA was found to have violated the Rehabilitation Act, which has an accommodation obligation analogous to the ADA and applies to entities receiving federal funds, when it failed to allow a paraplegic doctor to have her service dog accompany her at work, so that the dog could pull her wheelchair.

Similarly, in EEOC v. Autozone, Inc., 2008 U.S. Dist. LEXIS 75350 (D. Ariz. 2008), the court held that Autozone’s failure to permit a legally blind employee to bring his guide dog to work may have violated its accommodation obligation under the ADA.

Nevertheless, if the disability is not obvious, such as an employee with PTSD, the employer may request medical documentation to establish the existence of a disability and how the animal helps the individual perform his or her job. For example, in Alonzo-Miranda v. Schlumberger Tech. Corp., 2014 U.S. Dist. LEXIS 191082 (W. Tx. Dist. Ct. 2014), the court found that allowing a service dog to accompany an employee with PTSD was a reasonable accommodation, and that the employer was within its rights when it requested medical information supporting the condition and the employee’s need.

Co-worker allergies or fears are likely insufficient to relieve the employer of its accommodation obligation. However, these issues should be discussed and minimized to the greatest extent possible during the interactive process. For example, in Bonnette v. Shinseki, 907 F. Supp. 2d 54 (D.D.C. 2012), the VA adjusted the employee’s schedule and assigned bathroom to avoid contact with co-workers who were allergic to the employee’s service animal. In addition, the VA installed a special air filter for dog dander and required the employee to take the dog through a separate entrance to avoid contact with allergic employees.

An accommodation is not required, however, if it poses an undue burden or safety risk to the employee or others. For example, in Arndt v. Ford Motor Co., 247 F. Supp. 3d 832 (E.D. Mich. 2017) aff’d 2017 U.S. App. LEXIS 25155 (6 Cir. 2017), an employee with PTSD requested to have his service animal accompany him to his manufacturing job at Ford’s transmission plant. Although the employee quit before the accommodation process was completed, the court noted that safety concerns with allowing a dog in the manufacturing area was a legitimate concern that could be considered.

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Analyzing accommodation requests for ‘support’ animals

Even though therapy or emotional support animals are not addressed by the ADA ­regulations relating to employment, employers should respond to such requests like it does with any other accommodation request — namely, by engaging the interactive process.

First, the employer should request information about the employee’s disability and work restrictions. The request should also include information about the animal, including: how the animal helps the individual perform his or her job, whether the animal is housebroken, whether the animal is vaccinated in accordance with state and local laws, how it will be cared for during the day, and whether there are any concerns regarding workplace safety.

Next, the employer and employee should discuss any potential alternatives. That is, whether there are accommodations not requiring the animal to be at work that would be just as effective.
Finally, the employer and employee should reach a satisfactory decision about the effective accommodation.

In order for a support animal accommodation to be “reasonable,” at least one court has required proof that the therapy or emotional support animal alleviated one or more of the restrictions afflicting the disabled employee.

Specifically, in Edwards v. EPA, 456 F. Supp. 2d 72 (D.D.C. 2006), the employee suffered from Crohn’s disease, an intestinal condition that is aggravated by stress and fatigue. The employee asked for permission to bring a 10-week-old puppy to work with him to mitigate job-related stress, thereby improving his physical health. The employee obtained a note from his doctor, which referred to the treatment as "experimental" and could not guarantee its effectiveness. In fact, the note stated, “I would say ‘go for it!’ It certainly cannot hurt.” The employee's supervisor declined the accommodation request.

In finding that the employer did not violate the Rehabilitation Act, the court in Edwards concluded that the employee had not established a sufficient link between the Crohn's disease and the puppy, in part because he had not presented “objective” evidence that the dog would have reduced his stress. The court also made clear its own skepticism over the asserted link, pointing out that the enjoyment humans derive from pets is not a disability-specific phenomenon.

More recently, in March 2017, the EEOC has filed a complaint against a trucking company claiming that the employer wrongfully failed to accommodate a truck driver’s request to have his dog with him as he drives his trucking routes. EEOC v. CRST Int’l, Inc., No. 17-cv-00129 (filed March 2, 2017). According to the lawsuit, the truck driver’s psychiatrist actually “prescribed” an emotional support animal to help him cope with his PTSD and mood disorder and to “maintain appropriate social interactions.” The truck driver claims that during the hiring process he requested that his dog accompany him as an accommodation while driving. The company reportedly refused to employ him without going through an interactive process to determine whether or not driving with his dog was a reasonable accommodation. The EEOC is seeking injunctive relief, a change in the employer’s policies, back pay, and emotional distress, and punitive damages.

The lawsuit is still pending, but it should serve as a wakeup call to employers that want to short-circuit accommodation requests with respect to emotional support animals. Again, these requests should be processed through the interactive process like any other request. The accommodation can then be granted or denied based on the information gathered during this process.

In fact, demonstrating active participation in the interactive process limits the availability of damages. That is, the Civil Rights Act of 1991 excludes punitive and certain compensatory damages in cases where the employer can show good faith in attempting to accommodate. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (codified at 42 U.S.C. § 1981a(a)(3)).

Bottom line

Engaging in the interactive process is the key to successfully navigating an employee’s request for a service or support animal in the workplace. Knowledgeable counsel can be of great help in guiding employers through this process.

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Grant T. Collins is a MSBA-certified labor and employment law specialist who practices at Felhaber Larson in Minneapolis.

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