Your employee has requested to bring her dog to work in relation to a medical condition. She has even provided you a certificate illustrating that this is a service dog. What do you do?
Let’s break this down into bite-sized pieces.
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against individuals with disabilities. As such, employers need to consider the organization’s obligations under the ADA when deciding if there is a legal duty to allow a service dog to accompany an individual, even if the standard practice is to prohibit animals on premises. There are three separate parts of the Americans with Disabilities Act (ADA) addressing different areas in which qualified individuals with disabilities could be discriminated:
Where Title II and Title III cover service animals in public spaces, Title I covers service and other animals in the employment context.
Consider this scenario: an individual requests to bring a dog into your restaurant — do you have a legal obligation to grant this request? If this request is made by a customer with a service animal as defined by the ADA, then you do have a legal obligation under Title III to allow it. If the request is made by one of your servers, however, then you need to determine whether you are obligated under Title I of the ADA to allow an employee to bring a service animal to work.
A service animal is defined by the ADA as a dog that has been individually trained to perform tasks or do work for an individual with a disability. It might come as a surprise that the ADA does not require that service animals be professionally trained. In fact, it would be sufficient for an individual to train her own dog to do work or perform tasks related to her disability. For more information about which animals may or may not qualify as service animals, check out this guidance from the U.S. Department of Justice. It’s important to note that an individual does not have to provide any “proof” that their animal has been certified or trained as a service animal. Also noteworthy, service animal certification or registration documents, which can be purchased online, do not convey any legal rights under the ADA.
So how do you know for certain whether or not an animal qualifies under the ADA? For purposes of considering your obligations as an employer, it really doesn’t matter whether it’s a service animal as defined by the ADA or some other type of animal like an emotional support animal (i.e. an animal that provides comfort to an individual just by being with the person). This is because Title I doesn’t distinguish between service animals and other types of animals, but rather, it requires an employer to provide any reasonable accommodations to individuals with disabilities to remove workplace barriers, unless doing so would impose an undue hardship on the employer.
To determine whether you have an obligation to grant an employee’s request for accommodation, including the request to bring an animal to work, you must engage in the interactive process required by the ADA. Failing to engage in the interactive process can result in legal liability for your organization.
If medical documentation supports the need for a service or emotional support animal at work, then you need to determine whether you can reasonably make this accommodation without it imposing an undue hardship on the organization. As part of the interactive process, you are allowed to gather information to help you determine the nature of the medical condition and what accommodations are medically necessary. You may consider asking the employee’s medical provider to explain how the employee’s disability and the service animal’s function are related, and how the service animal will improve the employee’s ability to perform their job (you will want to attach a copy of the employee’s job description). Although you cannot require the animal to have professional training, the animal must demonstrate it has been sufficiently trained to not disrupt the workplace in order for this to be considered a reasonable accommodation.
Once you’ve engaged in the interactive process, you need to determine whether you can grant the accommodation without imposing an undue hardship on the organization. The existence of an "undue hardship” is a question of fact and depends on the specific circumstances of each situation. Check out this guidance from the Equal Employment Opportunity Commission for additional information about the interactive process.
Hannah advises employers on leave policies, discrimination, harassment, accommodations, wage and hour obligations and any other issues that may arise in the workplace.
Hannah advises employers on leave policies, discrimination, harassment, accommodations, wage and hour obligations and any other issues that may arise in the workplace. In addition to providing practical solutions to employment law matters, Hannah has extensive private practice experience. Her focus included early intervention advice and solutions to employers, as well as representing them in the defense of administrative claims. She now works on a team dedicated to providing solutions for employment law and compliance matters for employers of all sizes. Hannah graduated from William Mitchell College of Law, after receiving a Bachelor of Arts degree from Winona State University.
On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
“The only thing that is constant is change.”
Turns out that dusty old Greek philosophers occasionally say profound things (Heraclitus also said that a man’s character is his destiny). And since the Greeks are considered the fathers of democracy and were responsible for no small number of laws themselves, it seems an appropriate departure point to talk about the constantly changing landscape of employment laws.
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