Oct 24, 2013

By Carmon M. Harvey

These days, dogs are everywhere.  They are carried, pushed, toted, and even sometimes walked into almost every building imaginable – office buildings, shopping malls, classrooms, residential buildings, you name it.

That’s fine if  business owners and employers want to welcome Lassie with open arms, but what if the rule is “NO DOGS ALLOWED?” Do employers ever have to make an exception to that rule?

Of course. (Apparently the law only allows my mother to say “no” all of the time.)

The use of a service animal in the workplace can be considered a reasonable accommodation for a qualified person with a disability. Thus, the exception is narrow and employers should not fear their facilities are soon to be overrun by chew toys and doo doo bags.

But how is an employer to know when they are required to allow a service animal in their office space?

When must service animals be allowed in the workplace?

An employee’s request to have a service animal at work should be treated like any other request for an accommodation.

At a minimum, an employer has a right to assess whether the individual is disabled, whether the accommodation would enable the disabled individual to perform the essential functions of the position, whether the accommodation might cause an undue hardship, and whether the animal in question would pose a direct threat to the health or safety of other employees or the public.

The right to bring a service animal into the workplace does not mean that the employee gets to parade a mangy mutt around the office. The employee who is granted such an accommodation is responsible for the control and care of the animal, which includes making sure that it is not disruptive, keeping it clean and free of “mange” (as well as other parasitic diseases), and taking the animal out to relieve itself as necessary.

What is a “service animal?”

An employer must also assess whether the creature in question is a “service animal.” Whether an animal is a “service animal” depends on where and why one with a disability is trying to get Bruiser in the door.

If you’re talking public accommodations (Title III of the ADA), only dogs are recognized as a “service animal” – and the dog must be individually trained to do work or perform tasks for the person with the disability. Oh, and “miniature horses” are OK, too (and I’m not talking about My Little Pony). This definition does not include dogs and horses that solely are relied upon for “emotional support.”

Regarding housing accommodations under the Fair Housing Act, which contains no definition of “service animal,” the sky’s the limit, meaning that anything from ferrets to falcons could be an appropriate accommodation. “Emotional support” animals also must be permitted.

For places of employment, Title I of the ADA likewise contains no definition of “service animal,” so employers also must be prepared to consider allowing an employee to bring in an animal that does not meet the Title III definition – including animals used solely for emotional support and animals other than dogs.

What about … ?

For employers who’ve never had to deal with such a request, the litany of “what ifs” might be running through your minds right now.

What if another employee has a severe allergy to Fluffy? What if my business involves the preparation and service of food other than dog food? What if other dog-loving employees spend more time petting, feeding, or playing fetch with Sparky than working? What if Killer almost does in one of his new colleagues? Do I still have to allow it?

As a general rule, yes (although Killer probably has to go).

This means that employers might need to be creative in order to make the accommodation work for all employees. For example, employers might need to change office seating arrangements, purify the air, and find out the best ways to prevent dog hair from blanketing the office (I love dogs, but the thought of a dog hair blanket in my office is enough to make me want to work from home – which is a whole ‘nother post).

An obligation to collaborate

If you’re in a food service industry, the FDA Food Code has special rules for service animals and allows employees to use the animals in areas not also used for food preparation and to handle them in such areas if the employee washes his hands in the manner described in the Code. (Although I’m guessing that there’s no FDA Hand Washing Police to make sure that’s done right.)

If dog-loving employees are distracted, employers can give employees their doggie fix by allowing employees to lounge with Lucky during breaks (assuming the dog’s owner agrees), but prohibit the petting zoo outside of those times.

The gist is, employers are legally obligated to collaborate with their disabled employees on any request for accommodation. Failure to do so could land them in the EEOC’s doghouse.

This was originally published on Montgomery McCracken’s Employment Law Matters blog.

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