Does your dog bite? – service animals in the workplace

By Jeff Jones
Special to the UCBJ

In “The Pink Panther Strikes Again,” Inspector Clouseau famously asks a hotel clerk standing near a dog, “Does your dog bite?”  “No” is the response.  When Clouseau reaches down to pet the dog it just about chews his finger off.  Upset, Clouseau looks to the man and says, “I thought you said your dog did not bite!”  The man replies, “That is not my dog!”

Bringing service animals to work is no laughing matter, however.  The subject deserves education and attention so that employers and employees can find good solutions.  In addition, with the increased anxiety due to the pandemic, the frequency of requests for emotional support animals may increase.

One of the first things to note in connection with this subject is that bringing a service animal to work is different than bringing the animal to a store or other place of public accommodation.  Title III of the Americans With Disabilities Act (ADA) applies to places of public accommodation, but Title I of the ADA applies to the workplace.  Title I does notgrant employees an automatic right to bring a service animal to work.

The employment provisions of the ADA of course require that employers provide reasonable accommodation for employees with disabilities.  Accordingly, while the ADA does not grant an employee an automatic right to bring a service animal to work, neither do employers have the ability to dismiss the request out of hand.

Where the employee’s disability and need for a service animal are not obvious an employer may request documentation of the disability and the need for a service animal.  Documentation that the disability exists typically comes from the health care provider.  Remember that an employer is entitled only to enough information to validate that the condition exists, and to determine the nature of the limitations it places on the person’s ability to perform essential job functions.

Suppose you receive a request to bring a service animal to work.  The employee submits a note from a psychologist that says she suffers from anxiety and that the presence of the animal calms her such that she can focus and perform tasks both at home and at work.  Must you allow the employee to bring the animal to work?  The answer is, of course, it depends.

The animal must be properly trained such that it does not pose a threat to others.  A dog such as the one that tried to have Inspector Clouseau’s hand for a snack is not allowed.  In addition, the employer does not have to make provisions for care of the animal, such as seeing that it has bathroom breaks.  That said, a reasonable accommodation may include, for example, allowing the employee to modify her break schedule in a manner that allows her to tend to the animal’s needs.  The employee is not entitled to additional break time for this reason.

A question that arises when employees want to bring a service animal to the workplace is how to handle the situation when another employee has allergies.  Linda Carter Batiste with the Job Accommodation Network (JAN) recently offered some thoughts in the JAN Consultants Corner: Volume 02, Issue 01 regarding how this might be addressed.

Eliminate in-person contact.  Perhaps the employees could work in different areas of the building.  Different paths of travel in and around the workplace could be established. The employees could communicate by phone, e-mail, or teleconference.  Alternatively, one employee could work at home some or all of the time, or schedules could be altered such that they do not work at the same time.

Minimize exposure if in-person contact cannot be eliminated.  One employee could be provided a private/enclosed workspace.  Portable air purifiers could be used at or near workstations.  The employer and employees can develop a plan such that the two are not using common areas such as the break room at the same time.

Request that the employee who uses the service animal use dander care products on the animal regularly.  Ask the employee who is allergic whether he or she would be willing to use an allergen/nuisance mask to reduce exposure.

It is also worth noting that there may be other ways to accommodate the employee’s legitimate need.  For example, might other work changes such as working in a private space or at different times help with anxiety reduction?  The general rule – that so long as the accommodation is effective it need not be the one the employee prefers – applies in this setting as well.

By working together with the employee toward a reasonable solution, hopefully employers can avoid being “bitten” by this issue!  (Sorry!  Couldn’t resist.)

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at jjones@wimberlylawson.com.

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