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Spring-Forward ADA Twitter Quiz: POTUS, Service Dogs, And Job Offers

March 10, 2017

By Michael G. McClory

The Bullard Edge thinks everyone knows the answer to this question.  Who is dominating Twitter this month:
(a) @POTUS,
(b) @EEOCNews, or
(c) a screaming dog
 
The answer clearly is (b).  EEOC’s Twitter game has been huge.  Every time you turn around the agency is hitting you with a new tweet.  Whether it is EEOC training programs in Texas or commemorating women’s history month, the agency is tweeting about it.
 
With that in mind, we are going to present a Spring-Forward ADA quiz inspired by EEOC’s tweets this week.  Hopefully you have been checking your feed because the quiz starts now (phones down).  
 
Question #1 - Squints and the Service Dog:
 
Squints applied for a truck driver position with Chaos Trucking.  Separately, Squints also signed up for a drivers’ certification course with Chaos.  After the company admitted him into the training program, Squints revealed that he would need to have his service dog, Jerry, with him in order to perform the essential functions of the truck driver position.  He explained how Jerry would assist him on the job.  Chaos allowed Squints into the driver training program and he successfully completed the classroom half of it.  However, Chaos refused to allow him to participate in the on-the-road portion of the class due to its “no pets” policy.  Chaos ultimately declined to employ Squints.
 
Was Squints entitled to a “service dog” as “reasonable accommodation” for a truck driver?  Put another way, did Chaos violate the ADA by enforcing its “no pets” policy with respect to Squints?
 
 
Question #2 – Job Offer Rescinded:
 
For our second question we will keep the focus on Squints and Chaos Trucking, but we are going to (try to) forget about Jerry.  Instead, we will assume that Chaos made a conditional offer of employment to Squints and sent him for a pre-employment physical examination.  During the examination, the doctor identified a congenital eye condition that might affect Squints in the performance of his driving duties.  Chaos rescinded the job offer.
 
Did Chaos’ rescinding of the conditional job offer violate the ADA?
 
 
Intermezzo – It’s Not Jerry, But it is the Screaming Dog:
 
 

 
 
Answer to Question #1 (Squints and the Service Dog):
 
Probably. Squints probably was entitled to have his service dog, Jerry, with him on the job as reasonable accommodation.  By construing his request for accommodation as a request to bring a pet to work and then declining to hire him, Chaos likely violated the ADA (by not engaging in the interactive process, not providing a reasonable accommodation, and/or denying employment because of an accommodation request). 
 
You probably noticed that we did not provide you with enough facts for a definitive determination.  Specifically, we did not identify Squints’ disability, did not say how that disability impacts Squints on the job, and did not describe how Jerry would help Squints on the job. 
 
The ADA and parallel Oregon law apply to requests for reasonable accommodation in employment.  Under both 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.  (While EEOC has not specifically defined the term, Department of Justice regulations limit “service animals” to dogs or miniature horses.)
 
Here is our analytic overview.
 
  1. Does Squints have a disability?  If no, that is the end of the inquiry.  He does not need a service dog to help him overcome the impact of a disability on the job.
 
  1. Does the disability impact Squints on the job?  If no, that is the end of the inquiry.
 
  1. How would the service dog assist Squints on the job?
 
  1. Is Jerry actually a service animal?  Jerry is a service animal if he has been individually trained to provide a service for Squints.
 
  1. Would allowing the service animal accommodation create an undue hardship for Chaos Trucking?
 
On this last point it is important to note that the employee must have control of and must care for his or her service animal.  An employer is not required to allow an employee to have a service animal in the workplace that is not under control; for example, there is no requirement to tolerate barking, growling or other menacing behavior that causes reasonable apprehension about safety from attack.  Further, an employer is not required to feed an employee’s service animal, take it on walks, or attend to its relief needs.
 
Here is the EEOC tweet that inspired our first quiz question.
 

 
 
Answer to Question #2 (Job Offer Rescinded):
 
Probably.  The fact pattern suggests that Chaos may have rescinded the job offer because of its concerns about disability, but without first going through the appropriate analysis.
 
The ADA and Oregon law both prohibit an employer from discriminating against a qualified individual with a disability because the individual has a disability.  This prohibition applies at all stages of the employment lifecycle, from the application process, through the hiring process, in training and promotion, in compensation, and in discipline and discharge.  Adverse employment decisions must be related to the ability to perform the essential functions of the job, with or without reasonable accommodation.
 
The ADA and Oregon law allow an employer to extend a job offer that is conditioned upon the results of a post-offer, pre-employment medical exam.  During the gap between offer and employment an employer generally may require an offeree to submit to a medical examination or to respond to medical inquiries.  The employer must require the same exam or ask the same questions of all persons who will be entering that job classification.
 
If the post-offer, pre-employment medical examination reveals a physical or mental condition that may impact the offeree’s ability to perform the essential functions of the job, the employer has an obligation to engage with the offeree in the interactive process.  The goal is to determine whether the condition will impact performance of the essential functions of the job (and more medical information may be needed) and, if so, whether there is a reasonable accommodation that will overcome that impact.  Importantly, an employer may only rescind an offer based on the results of a post-offer, pre-employment medical examination if the interactive process leads to the conclusions that (a) the offeree would be unable to perform the essential job functions of the job with or without reasonable accommodation or (b) that there would be a direct safety threat.
 
In this case, we told you that Squints has a congenital eye condition.  We also told you that the doctor said the eye condition might affect Squints on the job.  Based on that information, Chaos rescinded its conditional offer of employment.
 
Instead, Chaos should have engaged with Squints in the interactive process.  It should have obtained sufficient information to know whether or not Squints would be able to perform the essential functions of the truck driver position and to perform them safely.  If he could not perform those duties safely without accommodation, Chaos should have evaluated whether reasonable accommodation in the truck driver position would be possible.  (Reassignment or transfer is not a reasonable accommodation option for applicants.)
 
Here is the EEOC tweet that inspired our second quiz question.
 

 
 
We hope you enjoyed this social media excursion.
 
Best regards,
 
 
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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