Employees’ service animal accommodation requests tend to bring out the beast in everyone – employees requesting the accommodation, employers, and other employees. Anecdotally, service animal questions are on the rise, dogging HR professionals. The issue is here to stay.
The EEOC has filed suits on behalf of employees needing service animals, including one filed in 2017 involving a returning veteran with post-traumatic stress disorder who benefits from the presence of a service dog. In the end, however, service animal accommodations need to be viewed like any other request for a reasonable accommodation under the Americans with Disabilities Act (ADA).
Why So Many Requests?
Service animals can provide vital assistance to individuals with a host of disabilities. Since the beginning of the ADA, allowing individuals with vision impairments to bring guide dogs to work has been an accepted accommodation. But this is only one example of the wide range of functions performed by service animals.
After amendments to the ADA took effect in 2009, a wider range of conditions rose to the level of a “disability” under the law and therefore had to be accommodated. For example, conditions such as seizure disorders, back impairments, diabetes, and anxiety disorders – that were not always considered disabilities prior to the amendments – now routinely receive protection and trigger reasonable accommodation obligations.
Service animals can provide assistance for many of these conditions. Yet, as with any other type of accommodation, there are individuals who will seek to exploit the law and seek to bring pets to work under the cloak of the ADA.
HR professionals need not roll over on command each time an employee asks to bring an animal to work. Understanding the employer’s rights and responsibilities under the ADA, as it pertains to service animal accommodation requests, can help to restore balance (which, coincidentally, is another function with which some service animals can assist).
On All Fours: 7 Fundamentals for Addressing Service Animal Accommodation Requests
First, Title I of the ADA, which governs on workplace accommodations, is not the same as Title III of the ADA, which governs places of public accommodation. The distinction between these two portions of the ADA often fuels misconceptions by employees and employers alike.
The Title III regulations on service animals in places of public accommodation do not translate directly to the workplace, and the differences between the two schemes are sometimes profound. For example, the ADA’s employment provisions do not feature the same restricted definition of a “service animal” as Title III, which both limits service animals to dogs and miniature horses and excludes pure “emotional support” or “comfort” animals. Title I of the ADA, governing workplace accommodations, is . . . fuzzier.
Second, employers can ask employees more questions about a request for a service animal, whereas Title III limits the questions that can be asked of patrons with service animals in places of public accommodation. Requests for service animals in the workplace should be treated like any other employee request for a reasonable accommodation. It involves engaging with the employee on what the condition is, and what the animal will do to help the employee (and help the employee to do the job).
Just as employees cannot help themselves to an accommodation, employees may not bring comfort animals to work without first requesting the accommodation (yes, this happens). That would be the tail wagging the dog. As with any other accommodation, employers and employees need to focus on the essential functions of the job and sort out how the requested accommodation (and possible alternatives) will enhance or possibly obstruct the employee in performing essential job functions.
Third, employers can seek appropriate medical documentation, while, of course, keeping medical information confidential. Bogus requests from people simply wanting to bring their pet to work create a cynical climate harming people with legitimate service animal requests.
Service animals can help people with conditions varying from vision, hearing and mobility disorders, to more invisible disabilities, such as seizure disorders, post-traumatic stress syndrome, and anxiety disorders. Consider seeking certification on the animal’s training and qualifications – but while certification is relevant, it is not a litmus test. Not all legitimate accommodation animals are certified, and it’s easy to obtain fraudulent certification online for pure pets.
Establishing Boundaries
Fourth, set appropriate boundaries and expectations if the employee is ultimately permitted to bring an animal to work. Define behavioral and grooming standards, and ensure that the animal has had all of the proper inoculations. And explore alternatives, or a bucket of accommodations that could also include reassignment (not a demotion to the doghouse) to a position or location where an animal may be less disruptive.
Fifth, pause (or paws) and reflect. Don’t pounce to the conclusion that the animal won’t work out and will cause a huge disruption – or that allowing one service animal will mean that everyone at work will be off the leash and beg to bring an animal to work (though some may try). As with any accommodation, consider giving it a whirl on a trial basis. This will provide a better factual basis for deciding whether the accommodation will or won’t work, and perhaps defending that decision.
Addressing the Curiosity and Needs of Other Employees (the Affected Workers)
Sixth, bone up on what you can and can’t say to other employees who try to put their paws on the situation and ask about the accommodation – because a dog or other animal at work will generate a lot more buzz than someone receiving a bigger computer monitor.
Without the employee’s consent, employers cannot tell others that the animal is permitted as a reasonable accommodation for the employee’s disability. The EEOC says that employers are limited to saying: “we’re emphasizing a policy of assisting any employee who encounters difficulties in the workplace.” And that’s it.
The EEOC-approved explanation may sound a bit cagey, but at least the employer will not be bitten by the ADA’s confidentiality requirements. Still, the employee with the animal might volunteer to have the dog wear a service animal vest to help deflect questions from others or deflect undue touching and attention toward the dog.
Seventh, be prepared to reconcile the interests of the employee with the animal with those of employees with allergies or inordinate fears of (or religious objections to) nearby animals. Those concerns alone may not justify refusing a request for an animal at work, but these competing interests need to be balanced.
Placing service animal requests in the mainstream with other workplace accommodation requests provides a measure of perspective, and some counter balance to the fear of the workplace going to the dogs.
| Mark Phillis is a shareholder in the Pittsburgh office of Littler and serves as co-chair of the firm’s Diversity and Inclusion Council. He handles a wide range of employment issues with a focus on discrimination and harassment.
Peter Petesch is a shareholder in the Washington, DC office of Littler and is a core member of the EEO and Leaves of Absence and Disability Accommodation Practice Groups. |