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Halloween Edition: ADA Trick or Treat (Comfort Animals, Quiet Workplaces)

October 31, 2016

By Michael G. McClory

Halloween is here.  For some kids, it is the biggest day of the year.  While Halloween’s origins are murky, the modern bottom line is clear.  Kids don costumes and go door to door asking for candy with the magic phrase, “trick or treat.”
 
Adults celebrate Halloween, too.  They may not roam their neighborhoods, but they still wear costumes.  Some wear them to hand out candy in the neighborhood; some go to parties; and some wear them to work.  Halloween is a growing workplace tradition (and there are a number of workplace Halloween cautions that we will not cover here).
 
In the spirit of mixing Halloween and employment law, The Bullard Edge offers this trick or treat opportunity.  We will pose two ADA questions, provide a trick or treat surprise, and then answer the question.  Good luck (and here is an Oh Henry candy bar to help you power through).
 
Topic 1 ~ Comfort Animals 
Jasper is a long-time Mid-Town Insurance employee.  Last week he informed HR that he suffers from panic attacks and that his doctor has prescribed a comfort animal – a bunny to be precise.  Jasper explains that the medication that he had been taking for panic attacks no longer works.  After experimenting with several alternatives, his doctor concluded that a comfort animal would be needed.  Jasper said that the bunny, which he named Rex, is supposed to be with him at all times.  While working, Jasper said that Rex is quiet and content in his carrier, which will fit on Jasper’s desk.  Jasper asked HR for permission to start bringing Rex to work.
 
Question: Assuming that Jasper has a diagnosis of panic attacks, and assuming that his doctor has prescribed a comfort animal, is Mid-Town Insurance required to reasonably accommodate Jasper by allowing him to bring Rex to work?
 
Trick or Treat Time: Is the curious case of Daniel Turducken Stinkerbutt, aka Daniel the Duck, a trick or treat?
 

 
Topic 2 ~ Quiet Workplace 
Mid-Town Sports hired Toni as a maintenance planner in January.  Initially, Toni worked in an office building in the suburbs.  However, in August the company transferred her job to a sports stadium that the company manages.  Toni was not the only one transferred; five other employees were also transferred.  This was part of a long-term company strategy to reduce the size of its headquarters and move more employees to the sites for which they had responsibilities.  Because of the transfer, roughly 30 percent of the time Toni is at work there is a game being played at the stadium.  With the game, there is a crowd; and with the crowd, there is noise.  Toni noticed that the noise and commotion bothered her; she began to lose sleep at night and experience headaches.  She also was having trouble concentrating at work, but had not made any mistakes yet (at least to the best of her knowledge).  Toni consulted her doctor and learned that one of the side-effects of the medicine she takes for a chronic condition is hypersensitivity to noise and commotion.  She asked about alternative medications, but her doctor said that there were none he would recommend.  Therefore, Toni met with HR, explained her situation and requested transfer to a quieter location.  The HR manager asked Toni whether she had made any errors in her work and Toni said she did not believe that she had.
 
Question: Does Mid-Town Sports have an obligation to reasonably accommodate Toni by granting her request to transfer to a quieter location?
 
Trick or Treat Time: Last night the Cubs won a World Series game at Wrigley Field for the first time since 1945.  Fans celebrated after the win with a rousing rendition of “Go, Cubs, Go,” written by Steve Goodman.
 

 
 
Analysis of Topic 1 ~ Comfort Animals 
The story of Daniel Turducken Stinkerbutt was a trick.  It does not help answer the Jasper situation.  Daniel the Duck is an “emotional support” animal, but his owner was not seeking a workplace accommodation.  She needed Daniel to accompany her on an airplane flight.
 
Jasper’s situation is different.  He is seeking a reasonable accommodation in an employment context.  If we assume that the facts presented are correct, here is what we have.  Jasper is an individual with a disability (panic attacks), which disability impacts him at all times including on the job, and for which he is requesting reasonable accommodation in the form of bringing his panic attack-reducing bunny to work with him.
 
First, because this is a request for reasonable accommodation in employment, the applicable statutes are the ADA and parallel Oregon law.  Under the ADA and Oregon law, allowing a “service” animal may be a form of reasonable accommodation; if the service animal is needed, it should be allowed except where allowing it would be an undue hardship.
 
Second, under the ADA and Oregon law a service animal is a dog or miniature horse that is individually trained to do work or perform tasks for a person with a disability.  No birds, cats or other animals are recognized as service animals.  Jasper’s bunny does not fall within this definition.
 
Third, in the employment context, neither the ADA nor Oregon law requires that employers permit comfort (emotional support) animals as a form of reasonable accommodation.  A comfort animal is defined only in contrast to a service animal.  In other words, allowing an animal as a form of reasonable accommodation is not required unless the animal meets the definition of a service animal. 
 
Fourth, if we were to flip the script just a bit, and imagine that Rex is a dog, then the analysis would be different.  In evaluating Jasper’s request to be allowed to bring Rex the Dog to work there would be several key questions.
 
  • Does Jasper have a disability?  [Yes.  He has been diagnosed with panic attacks.]
 
  • Does the disability impact him on the job?  [Yes.  It impacts him everywhere.]
 
  • Is Jasper requesting reasonable accommodation in employment?  [Yes.  He has asked to bring Rex to work in connection with his panic attacks.]
 
  • Is Rex a service animal?  [We do not know.  If Rex has been individually trained to provide a service for Jasper related to his panic attacks, then Rex is a service animal.]
 
  • Assuming Rex is a service animal, does Mid-Town Insurance have to grant Jasper’s request to bring Rex to work?  [Yes, unless allowing the service animal accommodation would create an undue hardship.  It is important to note that a service animal must be under the control of its owner.]
 
Analysis of Topic 2 ~ Quiet Workplace 
The story of Steve Goodman and “Go, Cubs, Go” is a 100% treat.  The song embodies the optimism that has kept Cub fans afloat for these last 108 years.  In good seasons and bad, Cub fans have sung that song following wins since 1984.
 
Sometimes it has been loud, which brings us to Toni’s situation and the question of whether Mid-Town Sports has an obligation to reasonably accommodate her by granting her request to transfer to a quieter location.  The answer is “maybe.”
 
Before you complain that “maybe” is a typical lawyer answer (which it might be), let’s take a look at the reasons for that answer, beginning with the discussion between Toni and HR.  It seems safe to say that Toni’s request for accommodation triggered the duty of Mid-Town Sports to engage in the interactive process.
 
An employer’s duty to engage in the interactive process with an employee may be triggered directly or indirectly.  Toni made a specific request for accommodation; she directly asked for transfer due to her medical condition.  On the other hand, the duty to engage in the interactive process may also be triggered in less direct ways.  For example, if Toni had simply complained that the noise and commotion was causing her to lose focus, Mid-Town Sports would have at a minimum been obligated to ask whether the loss of focus was interfering with her ability to perform the duties of her position.  There are no magic words that an employee must use to make an accommodation request and to trigger the employer’s obligation to engage in the interactive process.  The employer needs to be sensitive to any statement or action that gives it direct or indirect notice that the employee is or may be requesting some form of accommodation or that the employee may need some form of accommodation. 
 
If we assume that Toni has said enough to trigger the interactive process, there are some steps that Mid-Town Sports ought to take to determine whether the request should be granted.  At a minimum, the employer ought to ask Toni to explain her work-related limitations more and to explain how the requested accommodation would be expected to help overcome those limitations.  In order to understand the work-related limitations it may be necessary to obtain a limited amount of medical information as well.
 
If it turns out that Toni has work-related limitations, Mid-Town Sports is going to want to analyze whether the request is reasonable or not.  While the fact pattern does not provide any information on this point, it would be important to know a number of things, including whether the maintenance planner duties can be performed at another location and whether it is possible to change hours at the current location so that Toni is not working at the stadium during games.  After this analysis, Mid-Town Sports would want to meet with Toni again.
 
This brings us back to maybe.  It is possible that Mid-Town Sports will find that Toni needs reasonable accommodation and that the transfer requested is reasonable.  It may be that Toni needs a transfer, but granting a transfer would be an undue hardship.  The important thing is to continue to interact until a solution has been reached or all known potential solutions have been ruled out.
 
 
Enough yammering.  Enjoy your Halloween (and Go, Cubs, Go).
 
 
The Bullard Edge
 

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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