Fictional Mailbag & Dog Talk ~ A Guide Dog For A Visually Impaired Driver?
By Michael G. McClory - Bullard Law
September 18, 2017
Today, The Bullard Edge is bringing a hat trick of popular features. We are combining Dog Talk, our (fictional) mailbag, and our favorite cases remembered. Specifically, in this column we address a letter from Jane, a pet-disliking, but service dog supporting HR manager. Jane is trying to figure out how to respond to a request from a new employee for permission to bring her service dog to work. Jane does not oppose service dogs generally, but worries (rightfully so) about a direct safety threat that the service dog may not help the employee overcome (given that the employee is vision impaired, needs a guide dog, and the position involves driving). While The Bullard Edge does not provide legal advice, it will try to help Jane organize the issues presented by this fact pattern. Here are Jane’s letter and our response:
I don’t like pets. Cats I simply do not get. They are aloof and selfish and messy. Dogs, I admit, make some sense because they can be friendly (except of course the vicious ones). However, dogs also shed, whine and cost boatloads of money (food, grooming, vet). And, you have to clean up your lawn or take bags with you on walks. All of that is a voluntary situation that I just find baffling. People say, “My Cami is so cute!” or “Kelsey would risk herself to save you.” Nice, but no dog for me, thank you.
Anyway, even though I am not charmed by pets, I am actually happy to allow employees to use service dogs or other service animals in the workplace. Service animals are not pets. A real service dog might save a life or enable someone to work who otherwise could not. I love that. (Don’t go calling me a sentimentalist or softy, though.)
All of this is prologue to my question. In my role as HR Director for Mid-Town Interiors I am responsible for roughly 75 employees, approximately half of whom work on the design side while the other half work on the retail side. Our design teams work with residential and commercial clients to create functional and fashionable interior looks. Our retail side sells furniture, primarily to retail customers.
One of our employees is Raymond. We have employed him for a number of years on one of our design teams. Raymond has Type 1 diabetes and we have fully accommodated his need to have his service dog (Belle) with him at all times. That is not a problem. As I said, I am fully supportive of this need for service animal support. (On one particular day last Spring, Belle happened to shed in our showroom and without complaint I swept it up. I did not even tell Raymond, who was busy with a client.)
Even if I were not supportive, I know that allowing service animals to support employees generally is the law. Where does this obligation end, though?
Last week I extended an offer of employment to Franny in a “Design Assistant” position. This is really a fancy way to say entry-level clerk who does whatever is needed at the time. The duties may include filing, making telephone calls and driving (using a car to drop-off or pick-up stuff, and not driving a delivery truck).
When Franny arrived on Friday for orientation she had a dog with her. I asked her about this and Franny explained that Eagle (the dog’s name) is her service dog and that she needs Eagle in order to perform the duties of the Design Assistant position, as well as to engage in many non-work activities. Franny said that she was not trying to trick the company by not bringing Eagle to the interview; she simply wanted her application to be evaluated without having the company thinking about the dog or her disability (a slowly progressing deterioration of her vision).
I explained to Franny that Mid-Town Interiors does not have any issue allowing service animals on the job. That said, and since the question of accommodation had been raised, I asked Franny to tell me what service Eagle had been trained to perform. She said that Eagle is a seeing-eye dog that has been raised and trained by a non-profit organization specializing in the training of guide dogs. She said that Eagle was paired with her two years ago and that she is now able to do much more than she could before.
I would have accepted that if the Design Assistant position did not include driving duties. During the application process Franny had responded “yes” when asked whether she had or could obtain a driver’s license. Franny said she does have a license and for the most part is able to drive without assistance from Eagle. However, she said that Eagle has been trained to growl when a traffic light turns yellow and to bark when it turns red. Franny said she can tell all of this and that Eagle is just a little added assurance.
Does Mid-Town Interiors have to go through some kind of an interactive process before it pulls this particular job offer? I am happy to short list her for the next non-driving position, but dog-assisted driving seems ridiculous and inherently unsafe. Thanks.
The Bullard Edge's Response:
You won’t believe this, Jane, but this is not the first driving-assist dog situation I have encountered. Actually, I only heard about the first situation. Over 20 years ago, while still living in California, I received a traffic citation and had to attend “traffic school” in order to keep that ticket from driving my auto insurance rates through the roof. Traffic school consisted of 8 hours of classroom work (split into two evening sessions). While gruelingly long, the instructor provided excellent information, often illustrated with unusual stories.
One of the subjects was the need for drivers to take responsibility for their actions behind the wheel. The instructor provided a laundry list of excuses officers have heard for different moving violations (I had told the officer who stopped me that I was late for church, which was true, but did not excuse my driving above the speed limit). Among the stories the instructor told was of a driver who was stopped for running a stop sign. When asked, the driver told the officer that his dog had failed to bark. At that point the officer discovered that the driver was legally blind and used his dog to bark to alert him to traffic lights, stop signs, intersections and other cars. That obviously was not safe.
It does not sound like Franny’s vision deficit is as severe as the driver in the traffic school story. However, we are talking about driving on public roads, which is a highly safety-sensitive act. An error by the driver of Car A may result in harm to that driver, as well to as the drivers and passengers in other vehicles, to pedestrians, and to property. Safe driving is a big deal.
As we have discussed previously in The Bullard Edge, allowing an employee to have a service animal in the workplace may be a form of reasonable accommodation under both the ADA and Oregon law. Even though the facts in Franny’s situation seem outrageous, you still need to engage in the interactive process.
With that in mind, let’s go through the steps.
Does the employee have a disability? Here, you have said that Franny has some form of eye condition that is causing progressive vision deterioration. If that is the case, then the answer here is likely yes.
Does the disability have job-related effects? For a driving position it seems clear that a condition resulting in deteriorating vision likely does have job-related effects. Franny told you that is the case. (We wonder whether Franny is eligible to maintain her driver’s license.) A simple approach here might be to obtain a medical opinion (preferably from Franny’s treating physician) as to whether Franny is able to perform the essential driving function of the Design Assistant position.
Is Eagle actually a service animal? Eagle is a service animal if he has been individually trained to provide a service for Franny. The training requirement is not terribly stringent; the fact that Eagle has been specially trained by a guide dog organization is likely going to be enough.
How would the service dog assist with respect to the job-related effects? Franny has already told you that Eagle would help her to spot yellow and red lights when driving. Thus, setting aside the question of safety, Eagle would assist Franny on the job.
Is there any undue hardship or direct safety threat concern related to the service animal? Here the answer is a great big yes. If Franny’s condition is as reported, and if Eagle is needed to help her with driving, then there is a big safety concern. It might also be an undue hardship if Franny is not insurable for her driving.
The bottom line here is this. The Franny situation seems ridiculous; she is asking for permission to use a service dog on the job to help her see sufficiently to drive on public roads. This may be the kind of case where you assume that Mid-Town Interiors is not going to be required to grant this. However, do not assume. Go through the steps of the analysis and then make a decision. As the facts become less outlandish, the answer becomes less readily apparent.
Finally, we believe that your plan to short list Franny for the next non-driving position may be a reasonable option. Perhaps Franny will still need Eagle to help her in another position; however, if there is no direct safety threat or undue burden then granting the accommodation likely would be reasonable.
You asked an excellent question, Jane. I hope that we have been able to help you to get started with your analysis. As always remember, The Bullard Edge is not offering you legal advice. We have tried to familiarize you with some general legal concepts. For legal advice in any situation you should consult with your legal counsel.
Texas Court of Appeals Reverses Dismissal on Plea to Jurisdiction in Former Policeman’s Whistleblower Suit: https://t.co/CRyDReFJ5n