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A military veteran needs to bring a dog with him when he returns to work, but the animal’s bed under the desk triggers a co-worker’s pet-dander allergy. What’s an employer to do?
If you’re running a business in the U.S. and haven’t faced dilemmas over animals that workers need in the workplace, chances are you will sometime soon. Evidence suggests that requests by impaired and disabled workers to bring an animal to work to help them perform certain tasks, keep them focused, or otherwise do their job have grown or are about to rise.
Inevitably, when such requests are granted, co-workers will complain or ask if they, too, can bring an animal to work. Companies need to know what to do in response to employee requests to use an animal for help with a disability and when honoring such a request creates conflicts with the rights or preferences of other workers, lawyers and advocates told Bloomberg Law.
That includes setting rules for what areas of the workplace the animal may enter and how other workers may interact with it, as well as safeguarding any information that would reveal the animal owner’s disability, they say. It also includes understanding that bathroom breaks for the animal and a slew of other secondary accommodations may be necessary to fully accommodate the employee.
The good news is that employers should already have the processes in place to deal with such requests and conflicts, Sharon Rennert, an attorney with the Equal Employment Opportunity Commission, said. Employers must use the interactive process required by the Americans with Disabilities Act’s employment provisions, “just like any other request” for a disability-based job accommodation, she said. Rennert is a senior attorney adviser in the EEOC’s Office of General Counsel in Washington.
Management-side attorney Peter J. Petesch agreed. “Mainstream these requests with all others,” he said. Petesch, a shareholder in the Washington office of Littler Mendelson P.C., is a co-author of the Bloomberg BNA book “Disability Discrimination and the Workplace,” which has a section on the use of service and other animals.
What’s required of employers depends on the circumstances, as the ADA calls for disability accommodation requests by workers to be handled on an individualized, case-by-case basis, Petesch said. Accommodations are workplace-specific. In addition, different animals are trained to provide different types of assistance, he said.
Employees need to know that the ADA’s interactive accommodation process is a “team effort,” Wallis Brozman of Canine Companions for Independence (CCI) in Santa Rosa, Calif., said. That means working cooperatively with the employer’s human resources department, she said.
Workers also should be aware that employers can ask for more documentation and information to support a request to use an animal in the workplace than business and property owners are allowed to seek under the ADA’s provisions covering public spaces, she said. Brozman is CCI’s national corporate marketing assistant. The organization is the nation’s first and largest provider of service dogs for people with disabilities and has provided more than 5,500 service dogs to users free of charge since 1975, Brozman said.
Employers must determine whether the worker’s request to bring a dog or other animal to work can be accommodated or whether doing so would pose an undue business hardship for the company, Philip K. Miles III said. They also may have to consider whether the animal presents a direct threat to workplace safety, he said. Miles, who represents both businesses and individuals, is a shareholder with McQuaide Blasko in State College, Pa., and the publisher of the Lawffice Space employment law blog.
Introducing an animal into a workplace “is generally going to present some degree of undue hardship” on the employer’s business, he said. “The question is, how much.” Any hardship will be surmountable in most situations, Miles said.
But just like in any other ADA interactive-process setting, the employee isn’t necessarily entitled to the accommodation of his choice, Miles said. So employers “may wish to explore other options that accommodate the employee without the use of an animal,” he said.
“It’s hard to show an alternative,” however, for users of animals that perform specific tasks, such as detecting the onset of seizures or helping hearing- or vision-impaired workers move around independently, Petesch said.
If a dog or other animal “is being unduly disruptive,” that may rise to the level of an undue hardship, Rennert said. And whether that’s the case may depend on the animal’s training.
Traditional service animals are appropriately trained and won’t present these problems, Petesch said. But unlike the ADA’s public accommodation provisions, which define “service animals” as dogs or miniature horses and limit animal use in public spaces to service animals only, it’s an open question of law whether the ADA also allows for workers to use emotional support or comfort animals as a job accommodation and what types of animals that may include, he said.
“We’re still primarily” talking about dogs, but an emotional support animal could be a cat or a pig or a turkey, Nancy Horton of the ADA National Network (ADANN) said. “You name it.”
Not all emotional support animals “go through the rigorous training that certified service animals receive,” Petesch said.
Companies also need to be aware of any subtle differences in the local laws where they have business operations, Miles said. Several states have laws that address the use of service animals that may be more restrictive or permissive than federal law, he said.
Reliance on emotional support animals is coming more to the fore among people with mental disabilities, such as a military veteran struggling with post-traumatic stress disorder, employee-side attorney Donna Ballman said. Ballman is a solo practitioner in Fort Lauderdale, Fla., and the author of “ Screw You Guys, I’m Going Home,” a blog on employee-side employment law issues. She also wrote the book “Stand Up for Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards.”
Employers have the right to expect animals in the workplace to be well-behaved, Horton said. She’s a technical assistance project specialist in ADANN’s mid-Atlantic regional office in Rockville, Md.
That means a dog or other animal needs to be house-broken and clean, and it can’t cause others in or visiting the workplace to reasonably fear being bitten or barked at aggressively, CCI’s Brozman said.
Employers need to set guidelines with the animal user regarding its behavior and where in the workplace it’s allowed to be, Petesch said. That may raise the need to provide the worker with further job accommodations to make the use of the animal a reasonable overall accommodation for his condition, he said.
For our hypothetical returning veteran, for example, that may translate into also providing him with a quiet place to work, where he and his dog are less likely to disturb and be disturbed by others. For other workers, it may mean moving them to a low-traffic area in the workplace or to an area free from clutter, where it’s easier to move around.
But you have to be careful not to isolate the worker, Petesch said, because that would no longer be a reasonable accommodation.
Employers also may need to provide a place and time for the animal user to take the animal out to relieve itself throughout the workday, Miles said.
While a “physical reshuffling” of the employee’s workspace or location may be required, however, the ADA doesn’t require an employer to bump someone else out of a job to accommodate a worker’s animal use, Petesch said. But accommodating a worker’s need to use an animal on the job “can give rise to a whole menu of possible secondary accommodations,” he said.
Employers “need to be creative” and keep an open mind, the EEOC’s Rennert said.
“It would be a crazy lack of foresight” for an employer not to see the potential need for secondary accommodations for animal users, Ballman said.
That may include addressing the concerns of a worker who raises an objection to the animal’s presence in the workplace. Bringing an animal to work “generates a lot of buzz,” Petesch said.
An objection may be based on the other worker’s conflicting disability needs, such as the hypothetical co-worker with a pet-dander allergy, or some other disability-related basis, he said. It might even include a religious objection, such as a Muslim employee who can’t be around dogs because Muslims consider them unclean, Petesch said.
While that situation doesn’t seem to have occurred yet in the workplace, “it will happen,” he said.
Conflicting accommodation requests are going to come more to the foreground as animals are introduced into the workplace, Ballman predicted.
The way for employers to handle workers’ competing or conflicting disability needs is to “reopen the interactive process” as soon as the conflict is known, Rennert said. “You can’t just ignore it.”
Miles agreed. The ADA’s interactive process is continual, he said. So the employer—and the employee—need to continue to work together and “exhaust all possibilities” in trying to find a solution, he said.
That may involve physically separating where in the workplace the two employees are located or finding some other fix. But there will be very few situations that can’t be worked out, Miles said.
Resolving conflicting accommodation needs isn’t the only ticklish situation a worker’s request to use an animal for help at work presents for an employer, Petesch said.
The ADA requires employers for the most part to maintain the confidentiality of any medical or other information about a worker that might reveal to his co-workers that he has an impairment or disability. That can put “an employer between a rock and a hard place,” especially when a co-worker objects to the presence of a service or other animal, Petesch said.
Employers may only convey to other workers that the company is emphasizing its policy of helping any employee who has difficulties in the workplace as well as its policy of respecting employee privacy, according to the EEOC.
The bottom line is that it’s up to the employee to disclose or keep secret why he or she is bringing an animal to work, Brozman said. Under the ADA, no one can be forced to disclose that information, she said.
“One way for an employee to handle the situation might be to explain to others what your dog” or other animal “does for you” or helps you with, she said. Brozman is a two-time recipient of a service dog through CCI and she currently brings her service dog Mork to work with her.
Doing so might make life at work easier for the employee, Brozman’s CCI colleague Robert Schwinn said. Schwinn is CCI’s national coordinator of legal administration and planned giving.
Regardless, the employee needs to be clear with co-workers and others in the workplace how they expect them to interact with the animal, Schwinn said.
But none of these difficulties or potential difficulties is a reason not to go forward with the requested accommodation if it’s necessary to help the worker and it doesn’t impose an undue business hardship or present a direct safety threat, Rennert said.
Employers shouldn’t anticipate there being a conflict with the disability-related needs of another worker, she said. Regardless, “a trial period may be the way to go,” to see how things work out, before officially saying yes or no, Rennert said.
“It can create bad facts for an employer” to not at least try letting a worker use of an animal as an accommodation where it’s not clearly unreasonable, Petesch said. Plus, the company “might miss out on something that could be a good fit for its workplace” if it says no too quickly, he said.
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