“Dog Talk”: My What Big Teeth Your Service Dog Has!

By Michael G. McClory - Bullard Law

June 15, 2017

America loves pets and loves animals that work.  Perhaps this is what fuels the seemingly never-ending stream of questions related to the ADA and animals in the workplace.  Hardly a week goes by without a question.  Here are some examples.

- Does the ADA require us to allow an employee to bring his service frog to work?

- Is it unlawful to charge an employee for an excused absence where she misses work because her service dog has an intestinal issue?

- Will you give me a bigger office to accommodate my service Great Dane?
 
Questions like these have prompted The Bullard Edge to conclude that the time is right for a new recurring feature, which we call Dog Talk.  Each issue of Dog Talk will cover one or two discrete topics involving animals in the workplace. 
 
For this first issue our topic is job offers and service dogs.  We will present two short scenarios (that are based on real events) and pose a few questions about those scenarios.  It is like a mid-week pop-quiz.  Good luck.

Question #1 – Speed and the Service Dog:
 
Speed applied for a truck driver position with Chaos Trucking.  Separately, Speed also signed up for a drivers’ certification course with Chaos.  After the company admitted him into the training program, Speed 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 Speed 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 Speed.
 
Was Speed entitled to a “service dog” as “reasonable accommodation” to help him perform the duties of the truck driver position?  Put another way, did Chaos violate the ADA by enforcing its “no pets” policy with respect to Speed?
 
Question #2 – “Dangerous” Breeds As Service Dogs:
 
The Bullard Edge acknowledges that some will object to describing any breed of dog as dangerous.  Nevertheless, we will proceed given that this scenario is adapted from real events.
 
All-Day Tennis is a pay-to-play tennis facility just outside of town that caters to the tennis needs of both members and non-members.  ADT offers lessons and has plenty of courts.  ADT recently hired Calvin as a court monitor.  Employees in this position typically are responsible for the smooth operation of a section of courts; they answer patron questions, make sure that the court surfaces are cleaned between guests and serve as area security assistants. 
 
At the beginning of his second week of work, Calvin presented his supervisor with a medical note signed by his doctor.  The note indicated that Calvin is being treated for PTSD and had recently been paired with a service dog named Trusty.  The service dog helps Calvin to feel comfortable enough to interact with other people.  Calvin’s doctor asked that Calvin be permitted to bring Trusty to work with him.
 
Calvin’s supervisor and ATD’s HR manager asked Calvin about Trusty.  Calvin explained that Trusty had received training from a professional recommended by his doctor and helped him to feel calm enough to interact with other people.  Calvin said that during his first week on the job he had been unable to calm his nerves while working.  Everything sounded in order until Calvin mentioned that Trusty is a pit bull and produced a picture of Trusty.  After a short discussion away from Calvin, his supervisor and the HR manager told him that he could not bring Trusty to work with him.  They explained that a pit bull on the premises presented a direct threat of harm to others.  In addition to the risk that they perceived from pit bulls generally, ADT also had a concern that a pit bull on and around the courts would fundamentally alter the nature of the tennis experience for ADT customers.
 
Did ADT violate the ADA by denying Calvin’s request to bring Trusty into the workplace?

Answer to Question #1 (Speed and the Service Dog):
 
Probably. Speed 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 declining to hire him based on its “no pets” rule, Chaos likely violated the ADA in at least one of three ways: by not engaging in the interactive process, by not providing a reasonable accommodation, and/or by 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 Speed’s disability, did not say how that disability impacts Speed on the job, and did not describe how Jerry would help Speed 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 an employee to have a “service” animal in the workplace may be a form of reasonable accommodation.  The practical rule is: if the employee needs the service animal, then the employer should permit the service animal in the workplace 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.  The subject of other animals as service animals is beyond the scope of this issue of Dog Talk.)
 
Here is our analytic overview.

1. Does Speed have a disability?  If he does not, then that is the end of the inquiry.  He would not need a service dog to help him overcome the impact of a disability on the job and Chaos Trucking would not be required to permit him to bring Jerry to work.

2. Does the disability impact Speed on the job?  If no, that is the end of the inquiry.

3. How would the service dog assist Speed on the job?  The key is whether Jerry would help Speed to perform any essential functions of the truck driver position.

4. Is Jerry actually a service animal?  Jerry is a service animal if he has been individually trained to provide a service for Speed.  Note, though, that the training requirement is extremely flimsy.

5. 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 (1) must have control of his/her service animal and (2) must care for his/her service animal.  An employer is not required to allow an employee to have a service animal in the workplace if the service animal 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, attend to its relief needs, or provide any other care.
 
Here is the EEOC tweet that inspired our first quiz question.

@EEOCNews
#EEOC Sues CRST for #DisabilityDiscrim & #Retaliation. Trucking Co Refused to Hire Vet Because He Uses a Service Dog
10:05 AM - Mar 6, 2017

Answer to Question #2 (“Dangerous” Breeds As Service Dogs):
 
Probably not.  Based on the fact pattern we are going to assume that Calvin has a disability that impacts him in the performance of his job duties.  We are also going to assume that Trusty is a service dog and that Trusty would assist Calvin in the performance of the essential functions of the court monitor position.  We are also going to assume that ADT denied the accommodation request because Trusty is a pit bull.  With all of these assumptions, we then have to analyze whether ADT properly invoked direct threat as the basis for denying Calvin’s request. 
 
EEOC’s implementing regulations define “direct threat” as follows.

“Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a ‘direct threat’ shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job.”

 
In the case of Calvin, it is not his disability that is the source of the risk.  Rather, it is one aspect of his treatment ~ Trusty.  While Trusty may be trained to provide a service for Calvin, there seems to be an inherent risk in permitting a pit bull into the workplace.  There is no way for ADT, or Calvin, to know what Trusty might do.  Whether provoked or not, the nature and severity of that potential harm is simply too great.  Pit bulls have been known to maul and kill people.  An employer is not required to wait until the catastrophic event occurs before making an individualized assessment that a particular accommodation would present a direct threat of harm, which risk cannot be eliminated or sufficiently reduced.  In this instance, the individualized assessment is not an evaluation of Trusty (e.g., some form of testing him against a variety of simulated situations); rather, it is an assessment that putting a pit bull into the chaotic tennis environment (which includes kids and elderly individuals who would be somewhat defenseless) is not an acceptable risk.
 
We noted that real events inspired this scenario.  There were actually two real events.  The first falls into the category of “cases remembered” and involved a question I received several years back about the obligation of a business subject to ADA Title III to allow a patron to bring his “service pit bull” into the place of business.  We concluded that even if it was a “service” dog, it would fundamentally alter the nature of the business to allow a pit bull, with its dangerous and unpredictable propensities, to be near other patrons of the business.
 
The second real event occurred recently and involved an airplane on the runway in Atlanta, a passenger in a middle seat with an emotional support dog, and the passenger in the window seat.  As required by federal law, the airline allowed the emotional support dog onto the plane.  According to press reports, the window seat passenger was severely injured when attacked by the emotional support dog (a lab-pointer mix), sustaining multiple bites to his face.  While we will not pretend to know all of the circumstantial facts, we do believe that this attack highlights the unpredictable and potentially dangerous aspects of working with animals.  In other words, there is a completely legitimate and appropriate reason for an employer (or a business) to evaluate on a case by case basis whether a service dog (or emotional support dog) would pose a direct threat of harm to anyone.

We hope you enjoyed this inaugural issue of Dog Talk.  Let us know what questions or topics you would like to see addressed in future issues.
 
Best regards,
 
The Bullard Edge