Handling Workplace ADA Requests For Service Animals

Law360
April 30, 2021 Publications

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 have no doubt been strengthened during the quarantine and remote work periods.

As a result, employers should expect that as they roll out plans to transition their workers back to their physical worksites, they may see an increase in animal-related accommodation requests. Consequently, employers should prepare now to ensure that they understand 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 avoid 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 certain animals in the workplace,[1] there is no direct federal law that dictates generally that employers must adopt such policies. Considerations for allowing animals to accompany employees in the workplace must however be undertaken if requested by an employee as an accommodation based on an employee's disability.

Under Title I of the Americans with Disabilities Act as amended by the ADA Amendments Act, employers are prohibited from discriminating against 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 present an undue hardship to the employer.

Like 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 be able to prove (1) that they have a disability or have been regarded by their employer as having a disability, and (2) that they are qualified to perform the essential functions of their job with or without reasonable accommodation. Once an employee has established these facts it is up to the employee to propose a reasonable accommodation to their employer.[3]

Once an employee makes an accommodation request, the employer must then engage in an interactive process with the employee to evaluate the reasonableness of the accommodation 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 accommodation could reasonably be implemented to overcome the limitation.[4]

If through the interactive process the employer determines that the accommodation 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 available. What constitutes an undue hardship is not a bright-line test, however, facts such as costs, resources, business size and type of business operation are among the facts that may be weighed as factors.

Responding to Animal-Related Accommodation Requests

In evaluating an accommodation request to have an animal accompany an employee into the workplace based on disability, employers should understand that they are not required to consider an accommodation to allow for all types of animals in the workplace. An employer need only consider requests to bring a service animal or emotional support or therapy animal 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 drawing the distinction, however, is that in the context of Title I, which governs employment, there is no set definition of what constitutes a service animal or an emotional support or therapy animal.

Employers can however borrow from the definition set forth in the context of public accommodation requests under Titles II and III. Under the Title II and III regulations, service animals are defined as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, 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.[6]

Borrowing from the interpretations in the circumstances of public accommodations, to differentiate between a pet and a service animal, employers should consider what specific work or functions are to be performed by the animal related to the requesting employee's disability.

For example, a dog providing service to a diabetic employee may be trained to respond to signs that its owner is experiencing low blood sugar levels or to alert its owner of changes in blood chemistry in order for the owner to take swift action for help. Comfort or therapy animals may differ from service animals if they mainly provide comfort and companionship.

In certain instances, however, comfort or therapy animals may also perform work functions more akin to a service animal, although the employee describes the animal as a comfort or therapy animal. Pets on the other hand are domestic or tamed animals kept purely for companionship.

While the types of animals can be distinguished, employers should keep in mind that in the context of providing a workplace accommodation, the line of distinction for when an animal should be treated as a service animal may not be easily identifiable.

For instance, an employee suffering trauma that triggers post-traumatic stress disorder may request 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 need to engage 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 present an undue hardship to the company and the employee could provide support to demonstrate how the animal will aid them with their disability to perform the essential functions of their job. The company could consider alternative accommodation arrangements, such as continued remote work which would allow the employee to be with their dog, or an alternate work schedule, as appropriate.

An employer would not however be required to consider an accommodation request that is unlikely to enable an employee to perform the essential functions of their job. Further, employers are not required to consider requests for accommodations where the employee does not otherwise have the background to meet the requisite skills, experience, education and other job-related requirements necessary for the position.[7]

Proof of Work as a Service Animal

While it may seem intuitive to an employer to ask for certification that the animal an employee seeks to bring to work is a service animal, employers should exercise caution in requiring certification of the animal as a service animal prior to considering an accommodation request.

Under federal law and in most states, employees are not bound to produce a certification that the animal has been trained through a particular program to be deemed a service animal. Currently there is no universal program to certify an animal as a service animal. An employee may however be required by their employer to provide other documentation about the animal's training and health history, including vaccination history to assist the employer in ensuring the safety of having the animal on its work premises and to evaluate its function to the employee.[8]

In Schultz v. 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 acquired a dog as a service animal and requested to bring the animal to work.

Originally management allowed him to bring the dog to work but after complaints from other employees, and upon further inquiry of Schultz of the need, management determined that he would no longer be allowed to bring the dog to work. The employer's basis for the rescission was Schultz's own admission that he did not need the dog to be with him to perform the essential functions of his job.

On this basis, the U.S. District Court for the Western District of Michigan determined in 2001 that Schultz lacked an "adequate claim for denial of reasonable accommodation because his service dog [was] not necessary in carrying out the essential functions of his job".[9] In reaching its conclusion, the court considered the plaintiff's position as a designer.

The plaintiff's work as a designer involved developing detailed design drawings of existing equipment and facilities layouts. The plaintiff's work required him to work at an easel or desk on a computer for the majority of his work time. In performing his work, the plaintiff's contact with other personnel was limited. Further, the nature of the plaintiff's job as a designer did not require assistance for hearing impairment.[10]

A key takeaway from this case for employers is that when presented with an accommodation request to be accompanied at the worksite by a service animal, the employer should seek to understand, through the interactive process, whether the service animal is in fact necessary for the employee to carry out the essential functions of their job. In assessing the facts, the employer should consider the nature of the disability and the nature of the particular job that the employee performs for the employer.

In Arndt v. Ford Motor Co., a plaintiff who was a 24-year veteran of the U.S. 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 have his support dog accompany him to work.

The plaintiff explained to his employer that the dog was trained to sense when an anxiety or panic attack is going to happen and to guide him and direct him to a quiet, calmer place. The plaintiff further explained that the dog was also trained to keep people at an arm's length from his location. An interactive discussion commenced but was not completed.

The plaintiff claimed that the employer failed or refused to accommodate his PTSD by 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 accommodation he would sometimes have to miss work. The U.S. Court of Appeals for the Sixth Circuit in 2017 determined that the employee had failed to make a prima facie showing that the employer failed to engage in the interactive process in good faith or that it was responsible for the breakdown in that process.[11]

In considering animal-related accommodation 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 animal accommodation requests for anxiety-related disabilities stemming from COVID-19-related traumas may be viewed.

In another PTSD case from 2017 in the U.S. District Court for the District of South Carolina, Clark v. School District Five of Lexington and Richland Counties, a former elementary school teacher brought action against her former employer, alleging that the employee's 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 also argued that the refusal was a breach 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 dog that she trained to respond to her symptoms of anxiety and developing panic attacks. The dog was trained to create a barrier between the plaintiff and others and to put pressure on the plaintiff's chest or lick her hand in the event of an anxiety attack.

The school district denied the plaintiff's accommodation request based on undue hardship citing among its reasons for the denial 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 also 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 wear a weighted vest or to be allowed to remove herself from an environment upon the onset of a panic attack "with notice to the administration so that arrangements for supervision of her students could be made."[13]

The case survived a motion for summary judgment on the issues of whether (1) the employee was able to perform the essential functions of her job without accommodation, (2) the service dog was the only reasonable accommodation based on the disability, and (3) the teacher obstructed the interactive process or the school failed to act in good faith to engage in the interactive process to consider the plaintiff's request.

The Clark case illustrates how specifically fact-driven each disability discrimination case involving service animals can be and the importance of using the interactive process to explore all reasonable avenues for accommodation where feasible.

Where Do Employers Go From Here?

To prepare for the return to worksites in light of the COVID-19 pandemic, employers should take steps now to ensure that their policies and procedures will support the efficient and proper considerations for review of service animal-related disability accommodation requests. In doing so, employers should consider providing refresher training to their human resources team members and others who review accommodation requests for their business.

Employers should also ensure that only job-related medical information is solicited for review of disability accommodation requests and that this information is maintained as confidential in the employee's medical file. Employers should also prepare to take inventory of their job descriptions to ensure that they are updated to reflect current requirements of the job, including essential job duties that require 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 animal-related disability discrimination claims.


[1] See https://www.wsj.com/articles/pets-company-employer-perks-coronavirus-adoptions-11596993137.

[2] See 42 U.S.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 (6th Cir. 2010); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046-47 (6th Cir. 1998).

[4] 29 CFR §1630.2(o)(3).

[5] 28 CFR §§35.104, 26.104.

[6] 28 CFR §§35.136(i), 36.302(c)(9).

[7] 29 CFR §1630.2(m).

[8] See Schultz v. Alticor/Amway Corp., 177 F. Supp. 2d 674, 678 (W.D. Mich. 2001),aff'd,43 F. App'x 797 (6th Cir. 2002).

[9] Id at 678.

[10] Id. At 679.

[11] Arndt v. Ford Motor Co., 716 F. App'x 519 (6th Cir. 2017).

[12] Clark v. School District Five of Lexington and Richland Counties, 247 F.Supp.3d 734, 740 (D.S.C. 2017).

[13] Id. At 740.

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