Question: We have an employee who is getting a service animal and wants to know our policy on it. What can we ask in terms of why he needs the animal? What rights do we have in terms of allowing the dog on the job site? We operate heavy equipment at the job site and are concerned about allowing the animal on the site/in our equipment.
Answer from the experts at HR.BLR.com: You should treat the employee’s request to use a service animal on the job as you would any other request for accommodation under the Americans with Disabilities Act (ADA), and if the employee is disabled and the service animal would allow the employee to perform the essential functions of his job and would not cause an undue hardship, you may have to allow the service animal as an accommodation.
The ADA, which applies to employers with 15 or more employees, prohibits discrimination against disabled individuals and also requires employers to accommodate the disabled as long as doing so allows the employee to perform the essential functions of the job without causing the employer undue hardship.
Reasonable accommodation may include acquiring or modifying equipment or devices; offering job restructuring; including part-time or modified work schedules; reassigning to a vacant position; adjusting or modifying examinations, training materials, or policies; providing readers and interpreters; and making the workplace readily accessible to and usable by people with disabilities. It also may include the use of a service animal to help perform the essential job duties.
If the employee’s need for the accommodation is not obvious (for example because you were not aware he has a disability), or if the employer does not believe that the accommodation is needed (for example because the employee has performed the job without any problems), you may request reasonable documentation from the employee to determine if the impairment is a covered disability under the ADA and the extent of the individual’s functional limitation and need for accommodation.
Once you have documentation of the employee’s disability and need for accommodation, you can determine the appropriate accommodation for the employee. Most ADA experts agree that the best way to identify an appropriate accommodation, and thus comply with the ADA, is to engage the employee in the interactive process. In particular, the Equal Employment Opportunity Commission (EEOC) recommends employers undertake the following interactive process:
(1) Analyze the particular job involved and determine its purpose and essential functions;
(2) Consult with the employee to determine the precise job-related limitations imposed by the employee’s disability and how the limitations could be overcome with a reasonable accommodation;
(3) With the disabled employee, identify potential accommodations and assess the effectiveness each would have in enabling the employee to perform the essential functions of the position; and
(4) Consider the employee’s preference for a particular accommodation and select and implement the accommodation that is most appropriate for both the individual and the employer.
Since your employee has requested the use of a service animal at work, the interactive process likely should consist of discussing how the service animal will assist the employee in performing the essential job functions and how the animal will be contained on the worksite to prevent disruptions to the workplace and any safety concerns.
Unfortunately, there is little guidance on the use of service animals in the workplace. The Job Accommodation Network (JAN), a free consulting service of the Office of Disability Employment Policy of the Department of Labor that provides information and advice to employers on custom job accommodations, does have a guidebook as part of its “Accommodation and Compliance Series,” that addresses the use of service animals, available online. It provides some insight into how employers should approach the use of service animals, as well as several examples of when a service animal could be an appropriate accommodation in the workplace.
You may deny the employee’s request to use the service animal in the workplace if you can show that doing so would cause the employer an undue hardship. Undue hardship means that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business, and the standard is difficult to meet. Among the factors to be considered in determining whether an accommodation is an undue hardship are the cost of the accommodation and the employer’s size, financial resources, and the nature and structure of its operation.
If you can demonstrate that the service animal would be an undue hardship, then you may deny the accommodation. However, you then should consider if another accommodation would be appropriate to allow the employee to perform the essential functions of the job.
Because of the complex ADA issues, you should consult with an attorney who has an expertise in these matters.