Does My.employer Have To Allow My Service Dog
Over the past year, as many employees take worked remotely, they take done so in the accessory of their at-habitation co-workers — their pets, and for some, their service or emotional therapy animals. Amid the events of the social and health crunch of our times, the bonds and dependency of pets, comfort animals and service animals have no doubt been strengthened during the quarantine and remote piece of work periods.
As a result, employers should expect that as they curl out plans to transition their workers back to their physical worksites, they may encounter an increase in animal-related accommodation requests. Consequently, employers should set up 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 constabulary that dictates more often than not that employers must adopt such policies. Considerations for allowing animals to accompany employees in the workplace must yet be undertaken if requested by an employee as an adaptation based on an employee'southward inability.
Nether Title I of the Americans with Disabilities Act every bit amended by the ADA Amendments Act, employers are prohibited from discriminating against a qualified individual because of a inability and must provide a reasonable accommodation to an individual with a disability where necessary to perform the essential functions of their task.[2] Employers are not even so required to provide accommodations that present an undue hardship to the employer.
Like any other request for an accommodation based on inability, to establish coverage under the ADA for an employee requesting to bring a service creature to work, an employee must exist able to prove (i) that they accept a disability or have been regarded by their employer equally 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 information technology is upwards to the employee to propose a reasonable adaptation to their employer.[3]
Once an employee makes an accommodation asking, the employer must and so 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 chore. Both the employee and the employer must participate in the interactive process in skillful religion to identify the precise limitations resulting from the disability and to review whether the requested adaptation could reasonably exist 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 adaptation request presented and suggest an alternative accommodation if another reasonable accommodation is bachelor. What constitutes an undue hardship is not a bright-line exam, however, facts such every bit costs, resources, business concern size and type of business operation are amidst the facts that may be weighed every bit factors.
Responding to Creature-Related Accommodation Requests
In evaluating an accommodation asking to have an animal accompany an employee into the workplace based on inability, employers should empathise 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 fauna or emotional support or therapy animal that enables an employee with a inability to perform the essential functions of their job.
Absent a companywide policy inviting such, an employer is non required to consider requests to bring animals to work that serve solely as pets. The tricky part in cartoon the distinction, however, is that in the context of Championship I, which governs employment, at that place is no set definition of what constitutes a service beast or an emotional support or therapy brute.
Employers can withal infringe from the definition set forth in the context of public accommodation requests under Titles Ii and Iii. Under the Title II and 3 regulations, service animals are defined every bit "whatsoever domestic dog that is individually trained to practice work or perform tasks for the benefit of an individual with a inability, including physical, sensory, psychiatric, intellectual or other mental disability."[5] In improver 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 piece of 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 depression blood sugar levels or to alarm its owner of changes in claret chemistry in order for the owner to have swift action for help. Comfort or therapy animals may differ from service animals if they mainly provide condolement and companionship.
In certain instances, however, comfort or therapy animals may also perform work functions more alike to a service animal, although the employee describes the brute as a condolement or therapy creature. Pets on the other hand are domestic or tamed animals kept purely for companionship.
While the types of animals can be distinguished, employers should go on in heed that in the context of providing a workplace accommodation, the line of stardom 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 asking an accommodation to bring their emotional support animal into the workplace in order to facilitate their performing the essential functions of their task when returning to the worksite and without relapse. In this instance, the employer would demand to engage in the interactive process with the employee to determine the reasonableness of the accommodation asking.
The employer may need to consider the request if the organization would non present an undue hardship to the company and the employee could provide support to demonstrate how the fauna will aid them with their inability to perform the essential functions of their job. The visitor could consider alternative adaptation arrangements, such as connected remote work which would allow the employee to be with their dog, or an alternating work schedule, as appropriate.
An employer would not yet be required to consider an accommodation asking 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 run across the requisite skills, experience, teaching 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 animate being as a service animal prior to considering an adaptation request.
Nether 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 accounted a service beast. Currently there is no universal program to certify an animal as a service creature. An employee may however be required by their employer to provide other documentation about the fauna's training and wellness history, including vaccination history to assist the employer in ensuring the safety of having the brute on its work premises and to evaluate its function to the employee.[viii]
In Schultz 5. Alticor/Amway Corp., the plaintiff brought a claim alleging violations under Title Three and Title I for bigotry past his employer for a failure to let him to proceed to bring his dog to work. The plaintiff, who suffered from increased hearing loss, had caused a domestic dog equally a service animal and requested to bring the creature to work.
Originally management allowed him to bring the domestic dog to work just later on complaints from other employees, and upon further inquiry of Schultz of the need, management adamant that he would no longer exist allowed to bring the dog to piece of work. The employer'due south ground for the rescission was Schultz's own admission that he did not need the domestic dog to exist with him to perform the essential functions of his chore.
On this basis, the U.South. Commune Court for the Western District of Michigan determined in 2001 that Schultz lacked an "adequate merits for denial of reasonable accommodation because his service dog [was] non necessary in carrying out the essential functions of his job".[9] In reaching its decision, the court considered the plaintiff'due south position as a designer.
The plaintiff's piece of 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 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 task as a designer did non require help for hearing harm.[10]
A key takeaway from this instance for employers is that when presented with an adaptation request to be accompanied at the worksite by a service beast, 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 task. In assessing the facts, the employer should consider the nature of the disability and the nature of the particular task 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 back-trail him to work.
The plaintiff explained to his employer that the domestic dog was trained to sense when an anxiety or panic attack is going to happen and to guide him and direct him to a tranquility, calmer identify. The plaintiff further explained that the dog was also trained to keep people at an arm's length from his location. An interactive give-and-take commenced but was not completed.
The plaintiff claimed that the employer failed or refused to accommodate his PTSD past not granting his asking 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 take to miss work. The U.S. Court of Appeals for the Sixth Circuit in 2017 determined that the employee had failed to brand a prima facie showing that the employer failed to appoint in the interactive process in practiced faith or that it was responsible for the breakdown in that procedure.[11]
In considering animal-related accommodation requests in the midst of the COVID-19 pandemic, cases similar Arndt dealing with PTSD may testify 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.Southward. District Court for the District of South Carolina, Clark v. School District 5 of Lexington and Richland Counties, a onetime uncomplicated schoolhouse teacher brought action against her former employer, alleging that the employee's school district's refusal to allow a service domestic dog to accompany her to work was a failure to provide a reasonable adaptation 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 alienation of contract.
The facts presented in the case indicated that the plaintiff had experienced trauma with beingness trapped with members of her family unit 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 level on the plaintiff's chest or lick her hand in the upshot of an anxiety attack.
The school district denied the plaintiff's accommodation asking based on undue hardship citing amid its reasons for the denial that the plaintiff "was going to be in a school with students who may be allergic to and/or agape of dogs."[12] The district also asserted that because the essential duties of her job required her to collaborate 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 equally 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 assistants so that arrangements for supervision of her students could exist fabricated."[thirteen]
The case survived a move 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 merely reasonable adaptation based on the disability, and (3) the teacher obstructed the interactive procedure or the school failed to act in expert faith to appoint in the interactive process to consider the plaintiff'due south request.
The Clark example illustrates how specifically fact-driven each disability discrimination case involving service animals tin can exist and the importance of using the interactive process to explore all reasonable avenues for accommodation where feasible.
Where Do Employers Go From Hither?
To set up 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 inability accommodation requests. In doing so, employers should consider providing refresher training to their homo resources team members and others who review accommodation requests for their concern.
Employers should besides ensure that only job-related medical data is solicited for review of disability accommodation requests and that this data 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 practise now to prepare for these considerations with the return to their worksites, the better positioned they will be to avert an influx of animate being-related disability discrimination claims.
[1] See https://www.wsj.com/articles/pets-visitor-employer-perks-coronavirus-adoptions-11596993137.
[2] Come across 42 U.S.C.A. §12101 et seq.; 29 C.F.R. Parts 1630, 1602.
[three] See Jakubowski v. Christ Hospital, Inc
., 627 F.3d 195, 202-03 (sixth Cir. 2010); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046-47 (6th Cir. 1998).
[4] 29 CFR §1630.two(o)(three).
[5] 28 CFR §§35.104, 26.104.
[vi] 28 CFR §§35.136(i), 36.302(c)(9).
[7] 29 CFR §1630.two(m).
[eight] Meet Schultz five. Alticor/Amway Corp., 177 F. Supp. 2d 674, 678 (Westward.D. Mich. 2001),aff'd,43 F. App'10 797 (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. Schoolhouse Commune Five of Lexington and Richland Counties, 247 F.Supp.3d 734, 740 (D.S.C. 2017).
[13] Id. At 740.
Resources
Does My.employer Have To Allow My Service Dog,
Source: https://www.armstrongteasdale.com/thought-leadership/handling-workplace-ada-requests-for-service-animals/
Posted by: lawsblied1944.blogspot.com
0 Response to "Does My.employer Have To Allow My Service Dog"
Post a Comment