Parking as an Employment Accommodation
It’s important to understand that an employer's obligation to provide a reserved parking spot as a[...]
By: Barry A. Whaley, MS and Charlie Walters
Service animals fulfill a vital function for their handlers. They allow people who have disabilities that substantially limit one or more major life areas to function independently. Although it is difficult to know how many people in the U.S. use a service animal, an informal research review by staff at the Northeast ADA Center at the Yang-Tan Institute at Cornell University suggests as many as 20,000 service animals assist their handlers with everyday life activities. (Northwest ADA Center, n.d.) Perhaps now or in the future, as a Human Resource professional, you will have an employee or job applicant who uses a service animal. This article discusses your rights and obligations when there are service animals in the workplace.
It is essential for Human Resources professionals to understand that a service animal is a very expensive aid for someone who has a disability. The cost to train a service animal can vary from $20,000 to $50,000. Service animals are not pets; like a wheelchair, they are an extension of the person with a disability, providing a valuable service directly related to that person’s disability.
Before we discuss your obligations under The Americans with Disabilities Act (ADA) as it relates to service animals, it is essential to understand what a service animal is and is not. A service animal, as defined by the ADA, is “any dog that is individually trained to do work or perform tasks for the benefit of a person with a disability, including physical, sensory, psychiatric, intellectual or mental disability.”
As we see in this definition, service animals are dogs trained to do a task directly related to someone’s disability. Most commonly, when we think of service animals, we think of Seeing Eye dogs trained to provide navigation for someone who is blind or has low vision. However, service dogs can also be trained to alert people who are deaf or hard of hearing to the presence of people or sounds. Other dogs are trained to alert handlers who have seizures that a seizure is imminent and they should find a safe and comfortable location. Still other dogs assist with mobility or assist with tasks for people with physical disabilities.
Additionally, Human Resource professionals should be mindful that many disabilities are non-obvious and the need for a service animal may not be readily apparent. For example, they may assist someone with a psychiatric disability by detecting the onset of psychiatric episodes and lessening their effects.
Now that we have defined what a service animal is, we need to be aware that there are other classifications of assistance animals: emotional support or comfort animals. Although these animals may perform a necessary function for people, they are not considered service animals under the ADA and their use is not protected by the ADA. However, both service animals and emotional support animals can be a reasonable accommodation under Title I of the Americans with Disabilities Act.
Unlike the guidance provided under ADA Title III that expressly allows service animals to accompany their handlers anywhere the general public is allowed to go in businesses, restaurants and other places of public accommodation, the guidance regarding service animals as reasonable accommodations in the work environment is not so clearly stated. Title I of the ADA requires employers to provide reasonable accommodation to qualified employees with disabilities, except when the accommodation would cause the employer undue hardship. When an employee or applicant makes any request for an accommodation, including having a service animal at work, your responsibility is to enter into a good faith, interactive process to determine what accommodation would best meet the person’s needs. You do have the right to request documentation as to the employee’s need for the service animal, especially when a disability in non-obvious or the need for the animal is unclear.
Under Title I of the ADA, service animals as well as emotional support animals may be considered as possible accommodations for an employee with a disability. The employee and employer should engage in the interactive process to see whether this or another accommodation would allow the employee to perform the essential functions of his or her job. The Equal Employment Opportunity Commission (EEOC) has indicated that Title I of the ADA, which covers employment, does not require automatic access for service animals. The employee must request this as an accommodation and the employer must consider this request and determine whether granting the accommodation is reasonable in the person's workplace. Further, in an example given in EEOC’s How to comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers, the EEOC does say, “The company may not automatically reject the employee because he uses a service animal. The company must allow him to keep his dog near the cash register area unless it can prove that doing so would impose a significant difficulty or expense or a significant risk of substantial harm.”
How can I know if a dog is a service animal? Although you may see a service animal in a special vest or harness that identifies the dog as a service animal, this is not required by the ADA nor does the ADA require service animal certification or registration.
In order to determine whether a dog is a service animal or a pet masquerading as a service animal, there are two questions you may ask of the handler.
When trying to determine whether a dog is a service animal, the best way to make an evaluation is to observe the behavior of the animal. Service animals are so well trained that they will appear nearly invisible in the environment. The law is clear that the handler is responsible for the behavior of the animal and that the dog must be under the handler’s control at all times either by voice, leash or other tether, signal or another effective control. If the animal misbehaves or becomes a nuisance, you may ask the handler to remove the dog; the handler must be allowed to return but it is OK to refuse entrance to the animal.
Charlie Walters, Director of Transition Programs at Able South Carolina, adds the following personal story from a colleague who relies on a service animal in the workplace that may answer some of your questions:
I work a few doors down the hall from Dori and her service dog, a yellow Labrador and Golden Retriever mix named Shack. As wonderful as Shack is, however, this story is not about him. Nor is it about the stories that circulate about people who slap a vest on their untrained pet and try to make a case for it being a service animal. This story is about Dori and the thousands of other professionals like her who utilize a service dog on the job.
Dori holds a bachelor’s degree from Towson University and a master’s degree from Johns Hopkins University. Even though her experience, training, and character should be our focus, Dori has encountered every manner of misunderstanding in her career regarding her service dog.
“The challenge is getting people to see that you’re not asking for any special treatment,” Dori says. “You’re asking to work independently in the same environment as anyone else. You’re asking them [the employer] for permission to use a service animal in the same way that someone might use any other reasonable accommodation.”
Dori remarks that she has learned in her twenty-years of using a service animal in the workplace that employers should listen carefully to the needs of the handler. “A service dog owner is likely the best source of accurate and straightforward information about potential concerns that relate to their service animal.”
I asked Dori about working near people with allergies to dogs. “It’s simple,” she said, “My supervisor and I explain that they [the person with the allergies] should refrain from touching the service dog, and I work closely with my colleagues to ensure we have an answer to collaborative projects that doesn’t involve me entering their workspace.” For someone like myself who does not use a service dog, it was simpler than anything I would have ever considered.
“It usually is that simple,” Dori said, “but even when it’s not, there is almost always a solution to be found, like changing workstation set-ups or just not sitting close to a colleague.” The takeaway is that whether your concerns relate to allergies, a dog’s training, or anything else, open up those lines of communication and listen for solutions that might make the accommodation of a service dog on the job reasonable.
Service animals in the workplace can be a challenge for human resource professionals. Human resource professionals must evaluate the need and appropriateness of the accommodation as well as the valuable service the service animal provides. Unless another accommodation can be found that is equally effective as that provided by a service animal, however, we recommend that human resource professionals use extreme caution in denying a qualified employee’s request to be accompanied by his or her service animal.
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