Can Employers Ask For Service Dog Papers
Over the past year, as many employees have worked remotely, they have done so in the accompaniment of their at-home co-workers — their pets, and for some, their service or emotional therapy animals. Amid the events of the social and health crisis of our times, the bonds and dependency of pets, comfort animals and service animals take no doubt been strengthened during the quarantine and remote work periods.
Every bit a outcome, employers should expect that as they roll out plans to transition their workers dorsum to their physical worksites, they may see an increase in fauna-related accommodation requests. Consequently, employers should prepare now to ensure that they sympathize the extent of their obligations to consider these requests and to ensure that their policies and procedures are poised to properly evaluate these requests, and avert an onset of disability-related discrimination claims.
ADA: Legal Framework
While prior to the pandemic there was a reported increase in employers adopting pet-friendly policies, which allowed for sure animals in the workplace,[1] there is no directly federal police that dictates mostly that employers must adopt such policies. Considerations for allowing animals to accompany employees in the workplace must however exist undertaken if requested by an employee as an accommodation based on an employee's inability.
Nether Title I of the Americans with Disabilities Act as amended by the ADA Amendments Act, employers are prohibited from discriminating confronting a qualified individual because of a disability and must provide a reasonable accommodation to an individual with a disability where necessary to perform the essential functions of their job.[2] Employers are not however required to provide accommodations that nowadays an undue hardship to the employer.
Similar any other request for an accommodation based on disability, to establish coverage under the ADA for an employee requesting to bring a service animal to work, an employee must exist able to prove (1) that they have a disability or have been regarded past their employer every bit having a inability, and (2) that they are qualified to perform the essential functions of their task with or without reasonable accommodation. Once an employee has established these facts information technology is upwardly to the employee to propose a reasonable adaptation to their employer.[iii]
Once an employee makes an accommodation request, the employer must then appoint in an interactive process with the employee to evaluate the reasonableness of the adaptation request to allow the employee to perform the essential functions of their job. Both the employee and the employer must participate in the interactive process in good faith to identify the precise limitations resulting from the disability and to review whether the requested adaptation could reasonably be implemented to overcome the limitation.[4]
If through the interactive process the employer determines that the adaptation request would cause undue hardship on the employer, the employer can deny the specific accommodation request presented and suggest an alternative accommodation if another reasonable accommodation is bachelor. What constitutes an undue hardship is not a vivid-line test, however, facts such equally costs, resource, concern size and type of concern operation are among the facts that may be weighed as factors.
Responding to Animate being-Related Accommodation Requests
In evaluating an accommodation asking to have an animal accompany an employee into the workplace based on inability, employers should empathize that they are non required to consider an accommodation to allow for all types of animals in the workplace. An employer need merely consider requests to bring a service animal or emotional support or therapy fauna that enables an employee with a disability to perform the essential functions of their job.
Absent a companywide policy inviting such, an employer is not required to consider requests to bring animals to work that serve solely as pets. The tricky part in cartoon the distinction, all the same, is that in the context of Title I, which governs employment, in that location is no set definition of what constitutes a service animate being or an emotional support or therapy creature.
Employers tin however borrow from the definition set along in the context of public adaptation requests under Titles Two and III. Under the Title II and III regulations, service animals are defined equally "whatever dog that is individually trained to practice work or perform tasks for the benefit of an individual with a disability, including concrete, sensory, psychiatric, intellectual or other mental disability."[5] In addition to dogs, miniature horses meeting certain criteria, including size and weight limitations, have also been determined to be service animals.[six]
Borrowing from the interpretations in the circumstances of public accommodations, to differentiate between a pet and a service animal, employers should consider what specific piece of work or functions are to be performed by the creature related to the requesting employee's disability.
For case, a domestic dog providing service to a diabetic employee may be trained to respond to signs that its owner is experiencing depression blood sugar levels or to alert its possessor of changes in blood chemistry in society for the owner to accept swift action for aid. Comfort or therapy animals may differ from service animals if they mainly provide comfort and companionship.
In sure instances, however, comfort or therapy animals may as well perform work functions more akin to a service animal, although the employee describes the animal as a comfort or therapy brute. Pets on the other manus are domestic or tamed animals kept purely for companionship.
While the types of animals can be distinguished, employers should continue in listen that in the context of providing a workplace accommodation, the line of distinction for when an animal should exist treated every bit a service fauna may not exist easily identifiable.
For instance, an employee suffering trauma that triggers post-traumatic stress disorder may asking an accommodation to bring their emotional support animal into the workplace in order to facilitate their performing the essential functions of their job when returning to the worksite and without relapse. In this instance, the employer would demand to appoint in the interactive process with the employee to determine the reasonableness of the accommodation request.
The employer may need to consider the request if the arrangement would not nowadays an undue hardship to the company and the employee could provide support to demonstrate how the animal will assistance them with their disability to perform the essential functions of their task. The visitor could consider culling adaptation arrangements, such every bit continued remote work which would allow the employee to be with their domestic dog, or an alternate work schedule, as appropriate.
An employer would not yet exist required to consider an accommodation request that is unlikely to enable an employee to perform the essential functions of their job. Further, employers are non required to consider requests for accommodations where the employee does not otherwise accept the background to meet the requisite skills, experience, educational activity and other job-related requirements necessary for the position.[seven]
Proof of Work as a Service Animal
While it may seem intuitive to an employer to ask for certification that the fauna an employee seeks to bring to work is a service animal, employers should exercise caution in requiring certification of the beast as a service brute prior to considering an accommodation asking.
Under federal constabulary and in nigh states, employees are non bound to produce a certification that the beast has been trained through a particular programme to be deemed a service animal. Currently there is no universal program to certify an animal every bit a service fauna. An employee may still be required by their employer to provide other documentation nigh the animal'due south training and wellness history, including vaccination history to aid the employer in ensuring the condom of having the creature on its work premises and to evaluate its function to the employee.[8]
In Schultz five. Alticor/Amway Corp., the plaintiff brought a claim alleging violations under Title III and Title I for discrimination by his employer for a failure to permit him to continue to bring his dog to work. The plaintiff, who suffered from increased hearing loss, had caused a canis familiaris equally a service animal and requested to bring the animal to piece of work.
Originally management allowed him to bring the domestic dog to piece of work only after complaints from other employees, and upon further enquiry of Schultz of the need, direction adamant that he would no longer be allowed to bring the dog to work. The employer'southward basis for the rescission was Schultz's own admission that he did non need the dog to exist with him to perform the essential functions of his job.
On this basis, the U.South. District Court for the Western District of Michigan adamant in 2001 that Schultz lacked an "adequate claim for denial of reasonable accommodation because his service canis familiaris [was] not necessary in conveying out the essential functions of his job".[9] In reaching its conclusion, the courtroom considered the plaintiff's position as a designer.
The plaintiff'south work as a designer involved developing detailed pattern drawings of existing equipment and facilities layouts. The plaintiff'due south work required him to work at an easel or desk-bound on a computer for the majority of his work fourth dimension. In performing his work, the plaintiff's contact with other personnel was express. Further, the nature of the plaintiff'southward job equally a designer did not require aid for hearing damage.[10]
A key takeaway from this example for employers is that when presented with an accommodation request to exist accompanied at the worksite by a service animal, the employer should seek to understand, through the interactive process, whether the service brute is in fact necessary for the employee to comport out the essential functions of their job. In assessing the facts, the employer should consider the nature of the inability and the nature of the particular job that the employee performs for the employer.
In Arndt 5. Ford Motor Co., a plaintiff who was a 24-year veteran of the U.Due south. Army and who was working with Ford, had been diagnosed with service-related PTSD and mild traumatic brain injury. Based on the plaintiff's PTSD, the plaintiff requested an accommodation to take his back up dog accompany him to work.
The plaintiff explained to his employer that the canis familiaris was trained to sense when an feet or panic assault is going to happen and to guide him and directly him to a quiet, calmer identify. The plaintiff farther explained that the domestic dog was also trained to keep people at an arm's length from his location. An interactive give-and-take commenced just was not completed.
The plaintiff claimed that the employer failed or refused to accommodate his PTSD past not granting his request to have his service dog accompany him at work and that the failure or refusal resulted in his constructive discharge. The plaintiff claimed that without the adaptation he would sometimes have to miss work. The U.South. Court of Appeals for the 6th Excursion in 2017 determined that the employee had failed to make a prima facie showing that the employer failed to engage in the interactive procedure in expert faith or that information technology was responsible for the breakdown in that process.[eleven]
In considering animal-related adaptation requests in the midst of the COVID-19 pandemic, cases like Arndt dealing with PTSD may prove instructive in providing insight as to how service creature accommodation requests for anxiety-related disabilities stemming from COVID-nineteen-related traumas may be viewed.
In another PTSD case from 2017 in the U.S. Commune Court for the District of Southward Carolina, Clark v. School District Five of Lexington and Richland Counties, a former elementary school teacher brought activeness confronting her former employer, alleging that the employee'due south school district's refusal to allow a service dog to accompany her to work was a failure to provide a reasonable accommodation for her PSTD and panic disorder with agoraphobia, in violation of the ADA and public policy. The employee as well argued that the refusal was a alienation of contract.
The facts presented in the case indicated that the plaintiff had experienced trauma with being trapped with members of her family in a closet during Hurricane Hugo and was later diagnosed with having PTSD and panic disorder with agoraphobia. The plaintiff obtained a service domestic dog that she trained to reply to her symptoms of anxiety and developing panic attacks. The dog was trained to create a bulwark between the plaintiff and others and to put pressure on the plaintiff's chest or lick her manus in the event of an feet attack.
The schoolhouse district denied the plaintiff's accommodation request based on undue hardship citing amidst its reasons for the deprival that the plaintiff "was going to be in a school with students who may be allergic to and/or afraid of dogs."[12] The district likewise asserted that because the essential duties of her job required her to interact closely with students, that if the plaintiff's disability would require her to avoid interacting with students, she may not be otherwise qualified for the position as a teacher.
The plaintiff was offered some alternative accommodation options, including to clothing a weighted belong or to be allowed to remove herself from an environment upon the onset of a panic assail "with notice to the administration then that arrangements for supervision of her students could be made."[13]
The case survived a motility for summary judgment on the issues of whether (i) the employee was able to perform the essential functions of her job without accommodation, (ii) the service dog was the only reasonable adaptation based on the disability, and (3) the teacher obstructed the interactive procedure or the school failed to act in adept organized religion to engage in the interactive process to consider the plaintiff's request.
The Clark example illustrates how specifically fact-driven each inability bigotry case involving service animals tin be and the importance of using the interactive process to explore all reasonable avenues for adaptation where feasible.
Where Practise Employers Become From Hither?
To prepare for the return to worksites in light of the COVID-19 pandemic, employers should have steps now to ensure that their policies and procedures will support the efficient and proper considerations for review of service fauna-related inability accommodation requests. In doing then, employers should consider providing refresher training to their human being resources team members and others who review adaptation requests for their business.
Employers should also ensure that only task-related medical information is solicited for review of disability adaptation requests and that this information is maintained equally confidential in the employee's medical file. Employers should also prepare to have inventory of their task descriptions to ensure that they are updated to reflect current requirements of the chore, including essential job duties that crave on-site work.
The more employers can do now to prepare for these considerations with the return to their worksites, the better positioned they will be to avoid an influx of beast-related inability discrimination claims.
[i] See https://world wide web.wsj.com/articles/pets-company-employer-perks-coronavirus-adoptions-11596993137.
[2] See 42 U.Southward.C.A. §12101 et seq.; 29 C.F.R. Parts 1630, 1602.
[3] See Jakubowski v. Christ Hospital, Inc
., 627 F.3d 195, 202-03 (sixth Cir. 2010); Gantt 5. Wilson Sporting Appurtenances Co., 143 F.3d 1042, 1046-47 (6th Cir. 1998).
[four] 29 CFR §1630.ii(o)(3).
[5] 28 CFR §§35.104, 26.104.
[6] 28 CFR §§35.136(i), 36.302(c)(9).
[seven] 29 CFR §1630.2(m).
[8] See Schultz v. Alticor/Amway Corp., 177 F. Supp. 2d 674, 678 (West.D. Mich. 2001),aff'd,43 F. App'x 797 (sixth Cir. 2002).
[ix] Id at 678.
[10] Id. At 679.
[eleven] Arndt five. Ford Motor Co., 716 F. App'x 519 (6th Cir. 2017).
[12] Clark v. Schoolhouse District 5 of Lexington and Richland Counties, 247 F.Supp.3d 734, 740 (D.S.C. 2017).
[thirteen] Id. At 740.
Resources
Can Employers Ask For Service Dog Papers,
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