Support/Service Animals in the Workplace – What Should Employers Do?
By Courtney Amelung - Shawe & Rosenthal LLP
January 25, 2023
I’ve previously written about an employer’s obligation to accommodate service or emotional support animals in the workplace, as well as guidelines the employer should consider if it finds itself on the receiving end of such a request. At the time of that blog post, the EEOC had filed suit in the Northern District of Iowa alleging that a national trucking conglomerate failed to accommodate, refused to hire, and then retaliated against a veteran truck driver because he used a service dog, in violation of the Americans with Disabilities Act (“ADA”). (The ADA both prohibits discrimination against individuals with disabilities and requires employers to provide reasonable accommodations to such employees to enable them to perform their essential job functions or enjoy the privileges and benefits of employment.) That case ultimately resulted in a negotiated settlement and consent decree in March 2019. More recently, in July 2022, the EEOC filed suit against arts-and-crafts retailer Hobby Lobby alleging that it violated the ADA by refusing to provide reasonable accommodations and by terminating a cashier who relied upon a service dog to assist her with symptoms caused by post-traumatic stress disorder, anxiety, and depression.
Requests for accommodation via service and emotional support animals are becoming increasingly common, particularly in connection with mental disabilities. And clearly, this topic is one of particular interest for the EEOC. In fact, the EEOC has repeatedly taken the position that the use of a trained service animal can be a reasonable accommodation, even though Title I of the ADA, which applies to employers, is silent on this point. So, what’s an employer to do when an employee asks to bring their service or emotional support animal to work?
Well, the first step is for the employer to engage in an interactive process with the employee. Through this process, the employer may obtain necessary medical information about the employee’s limitations and possible reasonable accommodations. It is without question that a reasonable accommodation – including the use of a service animal in the workplace – need not be provided if it would impose an undue hardship on the employer’s operations. This principle was recently affirmed by a federal court in Michigan, which granted summary judgment to a hospital that was sued by a nursing intern who alleged that the hospital engaged in disability discrimination when it revoked her service dog accommodation.
Initially, the hospital accommodated the intern by permitting her to bring her service dog to work. The dog even followed the intern on her rounds with doctors and nurses. That accommodation was revoked, however, after the dog caused some hospital employees and patients to experience severe allergic reactions. Indeed, one nurse was forced to seek medical attention and miss two days of work! Ultimately, the Court agreed with the hospital that the dog posed a direct threat to the health and safety of the patients and staff on the intern’s floor. Of particular concern was the fact that the intern worked on floors where immunosuppressed patients were treated.
The Court also agreed that the hospital had sufficiently engaged in the interactive process, despite the intern’s claim to the contrary. In particular, the hospital proposed an alternative accommodation that would have permitted the intern to bring her dog to work but crate him while she visited patients’ rooms. The intern refused this option. Additionally, the hospital approved the intern’s proposal that the dog wear a onesie (called a “shed defender”) to contain shedding, but the intern failed to follow-up on this option once she learned there wasn’t one in her dog’s size. Even so, the hospital told the intern it remained open to continuing a dialogue about potential accommodation options.
Responding to requests for accommodation via service or emotional support animals is difficult given the lack of clear guidance and precedent on this issue. A robust, documented, and well-intentioned interactive process is critical in the event you find yourself being accused of intentional disability discrimination or a failure to accommodate. Because this is a fact intensive inquiry that varies on a case-by-case basis, we encourage you to contact your employment attorney the next time an employee asks if they can bring their furry (or maybe not so furry) friend to work.