I am fairly certain that a number of readers of this article will have been on airlines or in restaurants where they have observed individuals being allowed to have "service animals" accompany them on their trip or their restaurant excursion. It is not surprising that the issue of service animals in the workplace is now becoming more common and potentially raising issues that an employer must address.
Whether an employer has to accommodate the request to bring a service animal into the workplace depends on whether or not the employee is a qualified individual with a disability and the request for accommodation will enable the employee to continue to perform the essential functions of his/her job and the service animal is an animal as defined under the Americans With Disabilities Act.
The Americans With Disabilities Act defines a "service animal" as a dog or miniature horse that is individually trained to do work or perform tasks for a person with a disability (while miniature horses are defined as a "service animal" other animals, such as a cat are not). The type or work or tasks to be performed by service animals include:
- Guiding a blind employee;
- Alerting a deaf individual;
- Pulling a wheelchair;
- Alerting or protecting a person who is having a seizure;
- Alerting a diabetic that his/her blood sugar has reached high or low levels;
- Reminding a person with a mental illness to take prescription medications;
- Calming an individual with a mental health disability during an anxiety attack.
When it is not obvious as to what service a "service animal" may provide, the employer may ask only whether the animal is a service animal required because of a disability and what work or task the service animal has been trained to perform. The involved employee may not be required to demonstrate the performance of any task by the service animal.
Under the Americans With Disabilities Act, service animals must be harnessed, leashed and/or tethered unless those devices interfere with the service animal's work or the individual's disability. If the service animal is not harnessed, leashed or tethered, control must be exercised by voice, signal or other means by the involved employee. The employer is not required to provide care or food to the service animal and, moreover, the individual with the disability may be asked to remove his service animal from the workplace if it is out of control and the employee cannot control it; the animal is not house-broken; the facility cannot accommodate the service animal's type, size or weight or the service animal's presence will compromise legitimate safety requirements for the safe operations of the facility. It should be understood that although the above requirements may be enforced, a co-worker's allergies or fear of a dog or service animal is not a valid reason for prohibiting the service animal from the workplace.
Employers should consider putting together a written policy governing service animals in the workplace including the circumstances in which they will be permitted and the employee's responsibility to care and feed the service animal. When asked about a service animal being brought into a facility, the involved employee and the employer may engage in the interactive process to determine if another type of accommodation would be as effective to facilitate the employee's ability to perform the essential functions of the job but as in other cases of the interactive process, there must be accurate and complete documentation maintained to define the agreements in the interactive process. While not all employers may be confronted with the "service animal issue", for those that are, they must deal with and document any and all actions taken.
This issue may be viewed by some as unimportant or "even silly", but rest assured that it is becoming more important for employers to deal with.
Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at [email protected].