June 20, 2014
The Bullard Edge loves dogs. My pup Jimmy turns 2 today and I have attached his picture (a black and brown mini Dachshund).
Jimmy also relates (allow me some leeway here) to this week’s question in the (fictional) mailbag. Joe Barkley, the HR Manager at Big Towne Mall, is not sure how to respond to an employee who may be requesting reasonable accommodation or who may be looking for a way to bring his dog to work. Here is Joe’s question.
Joe Barkley’s Question:
“I like dogs. Don’t mistake anything I say as anti-dog. Here’s the sitch.
I am the HR manager at Big Towne Mall, which is home to more than 50 shops on three levels that circle around a cool indoor playground. It has awesome stuff for younger kids…slides, a bouncy floor, crawling structures. It also has a virtual sports attraction for adults…any adult who spends a hundred bucks at the Mall gets a chance to hit a big league fastball, be a hockey goalie, or play a hole at a famous golf course. It’s ingenious and has made the Mall a popular shopping destination for families with younger kids (or parents who want to try showing off a bit).
Last week Guy Winks, our maintenance engineer, told me that he needs to start bringing his dog to work. Guy said that he has diabetes and that Ranger, his German Shepherd, is a trained diabetic alert dog. Diabetes was news to me, but Guy said he was diagnosed six months ago after passing out on vacation. Guy also confirmed that Ranger is the same dog that he has been talking about since he started at the Mall almost two years ago.
Guy might have diabetes, but does that mean I have to let him bring his pet to work? Also, Ranger is a big toothy dog and Guy is responsible for playground maintenance. I don’t know if he bites, but I don’t want to find out at the Mall. Please help.”
The Bullard Edge's Response:
The Bullard Edge appreciates the question, Joe. It allows for a little birthday shout out to Jimmy. However, Jimmy is not a service animal and that is going to be one of the key issues for the Mall.
Let's begin by looking at some relevant definitions. Under the ADA, a “service” animal is a dog (or sometimes a miniature horse) “that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Other species of animals (such as birds and cats), even if trained, are not service animals under the ADA.
Under Oregon law, the term of art is “assistance” animal, which means an animal trained to assist a person with a physical impairment in one or more daily life activities.
Both the ADA and Oregon law require that the animal be trained to perform a specific function. An animal whose function is to provide comfort, emotional support, or companionship is not a “service” or “assistance” animal.
It also is important to note that any service or assistance animal must be under the control of its owner. There is no requirement to allow an animal that is not appropriately tethered or leashed. Further, there is no requirement to tolerate menacing behavior (such as barking, growling or other behavior that causes reasonable apprehension about safety from attack).
Where an employee asks to use a service or assistance animal as a reasonable accommodation related to a disability, the employer must engage the employee in the interactive process. The employer and the employee should work together to attempt to determine whether accommodation is needed and whether any reasonable accommodation is available that would enable the employee to perform the essential functions of the job. However, and significantly here, an employer is not required to provide an accommodation where providing it would be an undue hardship. An employer must assess on a case-by-case basis whether a particular reasonable accommodation would cause undue hardship.
In your case, the next step would be to meet with Guy and continue the interactive process. You want to get information from him. The natural place to start is with the request that Guy made. He told you that Ranger is a trained diabetic alert dog and asked that he be permitted to bring Ranger to work. You ought to confirm this information with Guy and find out what specific function Ranger would perform and whether Ranger has training to perform that specific function. (Typically, a diabetic alert dog is one trained to alert its owner in advance of low or high blood sugar events.)
You also would want to ask Guy how he envisions Ranger fitting into the workplace. Clearly, you have concerns related to Mall customers and the playground. You ought to discuss with Guy how Ranger will be kept under control, whether Ranger is well-behaved, whether Ranger would be with him at all times (that seems unlikely given the types of duties performed by Guy), and where Ranger might be kept when not with Guy.
In addition to the information that Guy self-reports, the Mall may need to obtain a limited amount of medical information regarding his diabetes condition. Among other things, the Mall may want to confirm that Guy has diabetes, find out what work-related impacts that condition has for him, and confirm that his medical provider believes Ranger is needed to perform a specific function for Guy.
The request ought to be granted if all of the following proves to be true: Guy has diabetes, he needs Ranger to provide a specific task, Ranger is trained to provide that task, the Mall is convinced that Ranger does not pose a threat, and having Ranger in the workplace is not going to fundamentally alter the nature of the business. If on the other hand, you learn that Guy wants to bring Ranger to work for comfort (or simply because he wants to have his dog with him for fun), then the Mall may want to deny the request.
Good luck and best regards,
The Bullard Edge
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.
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