Quiet, Dogs at Work: Why You May Soon Be Clocking In With Fido
By Patrick Dorrian
Employers, if you haven’t been asked if an employee can bring a dog to work, you should expect to soon. And if you already have, get ready to be asked again.
That’s what employment lawyers, disability advocates, and the country’s top job rights enforcer tell Bloomberg Law. Requests to bring trained service and other assistance animals into restaurants, libraries, and other public spaces are growing, they say, and that’s raised awareness among employees of their potential workplace rights. Moreover, the U.S. government has already sued freight company CRST International for not letting a driver trainee bring his emotional support dog on the road with him.
The good news for employers and employees is that many companies have the right procedures in place to handle these sorts of situations. The bad news is there is confusion about what rules apply, and detailed, workplace-specific guidance is sparse.
The part of the Americans with Disabilities Act covering employment doesn’t expressly mention the use of service or assistance animals in the workplace, so employers need to treat these requests the same as any other worker request for a disability-related reasonable accommodation, Philip K. Miles III said.
That means engaging the worker in the required back-and-forth known under the ADA as the “interactive process,” 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.
“Employers can’t just say no,” Donna Ballman, who represents workers in job discrimination cases, said. The same reasonable accommodation analysis that applies to every other request for a disability-related work adjustment or allowance applies to animal-use requests as well, she said.
That means a company needs to determine if a worker’s bringing an animal into its workplace is reasonable or would impose an undue hardship on its business, she said. Ballman is a solo practitioner in Ft. 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.”
‘It Comes Up Everywhere’
“It would be an unusual day when I don’t get a question about” the use of a service or other animal by a disabled person in a public space, housing, or employment, Peter J. Petesch told Bloomberg Law.
“A lot of employees are raising service animal questions,” 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.
“It comes up everywhere,” Petesch said. Manufacturing settings, field work like driving a truck, office settings, and medical settings are examples, he said.
Representatives with the ADA National Network (ADANN) and Canine Companions for Independence (CCI) say they’re seeing the same thing. Inquiries and requests to use animals as a job accommodation are rising, likely spurred by increased awareness generally, they say.
Service and other animals are being used more widely and for more and more reasons, the ADANN’s Nancy Horton told Bloomberg Law. It used to just be guide dogs for people with impaired vision or other mobility issues, she said.
Now dogs and other animals are used to pull wheelchairs, fetch items, run and find help, remind people when to take medications, or alert them to the onset of medical risks or conditions such as an impending seizure, she said. Animals are even being used to help people with anxiety and similar disorders to calm down, Horton said. She’s a technical assistance project specialist in the ADANN’s mid-Atlantic regional office in Rockville, Md.
Wallis Brozman with CCI said questions about the use of animals in the workplace have really jumped in the past few years, especially with the extensive media coverage received by the use of animals in public spaces. CCI, based in Santa Rosa, Calif., 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. She is CCI’s national corporate marketing assistant.
EEOC Fielding More Questions
Miles and Ballman both see a link between the rise in workers with mental disabilities and the increase or expected increase in requests to use assistance animals in the workplace. And it’s not just workers who are becoming more aware, Ballman said.
More and more doctors see the value of emotional support and other animals for people with mental health issues or disabilities, she said. “So they’re recommending them more,” Ballman said.
Add to the mix steps taken by the federal government to make people with mental disabilities more aware of their workplace rights. In December 2016, the Equal Employment Opportunity Commission, which enforces the nation’s workplace anti-discrimination laws, released a series of guidance on mental health issues for employees and employers.
The EEOC told Bloomberg Law it also is fielding more questions about the use of trained animals in the workplace. Although there’s been little litigation on the issue, “we’re seeing more charges” of discrimination relating to animals, Sharon Rennert, an attorney with the agency, told Bloomberg Law. Our offices are also receiving more phone calls, training requests, and other appeals for technical assistance relating to animals as a job accommodation under the ADA, she said. Rennert is a senior attorney adviser in the EEOC’s Office of General Counsel in Washington.
The increased attention on people bringing assistance animals into public spaces has not only raised awareness among the disabled community about their potential rights in the workplace and elsewhere; it’s also resulted in a great deal of confusion. And in some sense, that confusion may also be a factor in the growth of job accommodation requests.
The Fair Housing Act and the part of the ADA covering public spaces differ from the provisions of the ADA covering employment when it comes to animals that help the disabled, Horton said. There are different rules and definitions among the various parts of the ADA, and between the FHA and Title I of the ADA, which covers employment, she said.
And employers often are just as confused as workers, she said. Many employers operate in public spaces such as restaurants and are already familiar with the restrictions on service animals set in Title III of the ADA, which applies to public accommodations, Horton said.
Some aren’t making the distinction between employment and public spaces and are applying the wrong standards, Horton said. “People are getting tangled up,” she said. For workers, she said, the confusion can show up in believing that once they’ve established their need and right to bring an animal into a public space, they’ve established their need and right to do so at work as well.
But employers are permitted to ask for more information and documentation to substantiate the need to use an animal as a job accommodation, Brozman said. The one-step process to show a need for public space animal use is separate from the test that applies under the ADA’s employment provisions, she said.
The ADA process for employment-based animal use requests is interactive, which means it’s an ongoing conversation between the employee and the employer, she said. Workers “need to know that it’s a team effort between you and HR,” 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.
Comfort Animals, Too?
On the other hand, because ADA Title I doesn’t define “service animal,” the types of animals that may be used for assistance in the workplace is “fuzzier,” Petesch said. In contrast, ADA Title III—for public accommodation—defines service animal as a dog or a “miniature horse,” he said.
That definition was tightened in 2010, Brozman said. The tightening has lead to a distinct drop in the use of other animals in public spaces, she said.
The ADA employment part’s lack of a similar limitation means companies generally should at least entertain the possibility of workers using other types of animals on the job, Petesch said. That includes those commonly referred to as emotional support or comfort animals, he said.
Both Petesch and the EEOC’s Rennert said it’s an open legal question as to whether the ADA’s employment provisions include emotional support animals. The EEOC hasn’t addressed the question, Rennert said.
But the lawsuit the EEOC brought against CRST in March may begin to answer that question. CRST has until Nov. 29 to respond in court to the EEOC’s allegations, and the case is tentatively set for trial next November.
But unlike a worker who uses a guide dog for mobility purposes, many employers have difficulty seeing the benefit of an employee’s emotional support animal, Ballman said. “So they’re skeptical.”
Regardless, Brozman’s CCI colleague Robert Schwinn said it’s hard to predict that we’ll start seeing other types of animals, such as cats and pigs that provide comfort or emotional support to their users, clocking in at work. Schwinn is CCI’s national coordinator of legal administration and planned giving.
A catalyst that helped to spur the 2010 amendment of ADA Title III’s definition of service animal was the “explosion” of requests to bring service animals, including chickens and snakes, into public spaces, Brozman said.
The overwhelming majority of animal users still rely on dogs and that will likely continue to be the case, Brozman, Schwinn, and the ADANN’s Horton said.
Is There Need for EEOC Guidance?
The EEOC is seeing the same confusion among workers and employers that CCI and the ADANN is seeing, Rennert said. But the agency has no plans “at the current time” to issue further resource documents or other guidance on the topic, she said. The EEOC has said in guidance on blindness and vision impairments that modification of employment policies to allow use of a guide dog at work can be a reasonable accommodation under the ADA.
The EEOC “is awaiting new leadership,” she said, referring to the candidacies of two Trump administration nominees for seats on the five-member commission, including a new chair. What may or may not happen after that with guidance on animals as job accommodations is difficult to predict, she said.
“There could be a number of issues that require more attention” in the eyes of the new leadership, Rennert said.
Horton, for one, thinks some guidance from the agency could be beneficial. “Folks look to the EEOC” for direction, and the commission typically does a really good job with its guidance materials, she said.
“EEOC guidance is generally easily understood, straight-forward, and user-friendly,” she said. She cited the agency’s guidance on leave as a reasonable accommodationunder the ADA as a potentially “good model” for service animal guidance.
“It would carry some weight with folks” and help guide people through the process, Horton said.
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