Some readers may know that I have an adorable dog. A lifelong dog-hater, we got the dog as a bribe for my son (long story), and now I love the darned thing. There are days that he is the only one in the family that I love. And it’s been great, in this year+ of WFH, to have him nearby at all times. Many people agree – and some would like to take their fur babies to the office when they return. But, as one court recently explained, that’s only required if the dog is, in fact, a reasonable accommodation under the Americans with Disabilities Act – and there must be medical support for such an accommodation.
In Conlan v. Costco Wholesale Corp., the employee had a marketing job that required some travel. After several years, he asked if he could bring his dog, Teddy, along – apparently, he had trained Teddy to alert him and others to anxiety attacks and migraines. As the court explained, when the employee felt an anxiety attack coming on, he would press a button on his watch that would make a noise. Teddy would then respond with a high-pitched bark that would alert others in the vicinity that the employee needed medical assistance. (Without questioning the sincerity of the employee’s condition, I am a little confused, however, as to why the employee couldn’t simply ask for help rather than pressing a watch button…. It seems a little, well, unnecessarily complicated to involve a dog in this process.)
The employee provided a note from his health care provider (which he apparently dictated to her) that he “would benefit from having a companion dog because of mental health reasons.” (Interestingly, however, the HCP had not actually diagnosed the employee with a mental health disorder when she wrote the note. I know many employers will not be surprised about this. We often struggle with doctors simply parroting whatever employees want them to say…) The supervisor told him that the Company would need more information. So the employee got a second note from his HCP. Again, he told her what to say, and this time she wrote that he “would benefit from a psychiatric service animal … due to his mental health disorder.” And (shockingly, I know), the HCP still had not diagnosed him with any mental health disorder.
There was some confusion about the notes – one referred to a “companion dog” and the other to a “service dog.” As the court noted, these are very different things. A service dog is trained to perform a specific task or service for an individual with a disability. A companion dog provides emotional support only. By the way, the employee had also gone on the Internet to get a card asserting that Teddy was a registered service dog. (Yes, those cards are not worth the paper they’re written on. I could go on there to register my adorable fluff ball as a service dog. And let me assure you, he’s purely ornamental.) By the way, at trial, the HCP admitted she should not have designated Teddy as a service animal – he really was an emotional support animal…
The employee then showed up at work with Teddy, prior to receiving permission to do so. The supervisor and the corporate accommodations specialist spoke with the employee, and told him they needed more information about his functional limitations and work restrictions (as employers are permitted by the ADA), in order to assess his request for reasonable accommodation. They provided him with several forms for his HCP: a job analysis summary that described his job duties and a work restrictions form on which the HCP could identify the employee’s work restrictions. The HCP completed both forms, stating that the employee had no restrictions and was released to work. In a separate note, she stated that:
Work restrictions for Nicholas’ mental health are not limited, however, he benefits from a companion/psychiatric animal. This animal helps decrease anxiety and helps manage panic attacks when they arise, and should be available for full contact at all times as a service animal. Nicholas has not had a seizure for four years, and this animal is not for that purpose. This service animal is a benefit to Nicholas’ mental health disorder, anxiety management, and for coping with panic attacks.
Well, because the employee had no actual work restrictions, the Company decided he did not need an accommodation. So his request to bring his “service” animal to work was denied.
Of course, the employee sued. The federal district court however, agreed with the employer that it was not required to provide an accommodation where the employee had no restrictions that would preclude him from performing the essential functions of his job – as stated by the employee’s own HCP.
By the way, even if the employee had been able to show that he had work restrictions that could be addressed by bringing his dog to work, the employer would not have been required to permit it if doing so was unreasonable or an undue burden. There are many factors that would go into this assessment – including how well-behaved and controlled the dog is, the impact on other employees (e.g. allergies, phobias, etc.) and whether those issues can be addressed (e.g. by separation, barriers, etc.), workplace safety and hygiene concerns (e.g. no animals around food preparation or around heavy machinery), and more.
So, for the most part, employers don’t have to permit dogs in the workplace. Doggone it!