handling difficult accommodation requests to serve your ... · horses if specially trained to...

Comfort Pets, Scent-Free Zones & Interpreters

Handling Difficult Accommodation Requests to Serve Your Employees and Protect Your Organization

Sara G. McGrane (612) 373-8511

[email protected]

• Service animals and comfort pets Public accommodation Employment

• Scent-free zones • Interpreters

Outline

• Governed by the Americans with Disabilities Act (ADA) Title I – Employment Title III – Public Accommodation

• Minnesota has similar state law

Service Animals and Comfort Pets

• General Rule Individuals with disabilities under the ADA (or MN

law) may use service animals in places of public accommodation.

• What is a public accommodation? Private entity that affects commerce. Hospitals, banks, office buildings, restaurants,

schools.

Title III: Public Accommodations

• Title III applies only to service animals. • There are no laws allowing individuals to

use comfort pets in places of public accommodation.


• Definitions Service Animal: Dog that is trained to do work

or perform tasks for the benefit of an individual with a disability. 28 CFR § 36.104.

Comfort Pet / Emotional Support Pet: No formal definition. Generally defined as any animal which provides comfort, safety, or emotional support to an individual.

Service Animals and Comfort Pets

• Other Animals Only other allowed service animal is

miniature horse. Separate ADA regulations permit mini

horses if specially trained to assist with certain tasks.

• Courts have denied arguments that other trained animals are service animals. Rose v. Springfield-Green Cty. Health

Dep’t: Trained monkey is not a service animal.


• “Do work or perform tasks” Dog must be specifically trained to assist with a

specific function. Ex: guide blind individual or assist in event of

seizure.


• Training Dog can be trained by individual or by

professional. Do not need to be professionally trained. No regulations defining when dog qualifies as

service dog. Do not need certificate.


• Business Obligations Allow service animals to accompany individuals

wherever the individual is generally allowed to go.

Must reasonably modify policies, practices, or procedures to allow disabled individual to use service animal.


• Fundamental alteration Businesses need not permit service animals if

“doing so would result in a fundamental alteration or jeopardize the safe operation of the public accommodation.”


• Proving a fundamental alteration is a high bar • Examples Patient allowed to use service dog during stay at

psychiatric ward. Patron allowed to use service dog with history of

barking at music concert. Patron allowed to use service dog on public brewery

tour.


• Direct threat defense Must be based on actual risk, not generalized

speculation or fear. Example: Roe v. Providence Health System-Oregon.

• Hospital established direct threat defense because dog’s putrid odor, size, and possible infection caused patient transfers, allergic reactions, and made it difficult for staff to assist patient.


• Allergies and fear are not excuses “Allergies and fear of dogs are not valid reasons for denying

access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.”

https://www.ada.gov/service_animals_2010.htm



• Handler’s Obligations Handler is at all times responsible for the service

animal. Service animal must be “under control.” Must be on leash or otherwise under control by

voice or signal.


• Businesses can ask: If the animal is a service animal. Whether the service animal is required because

of a disability. What tasks it is trained to perform.


• Businesses cannot: Ask about the individual’s disability. Require medical documentation. Require service animal certification. Ask the dog to demonstrate the ability to

perform specified task.


• What to do if animal is being disruptive “A person with a disability cannot be asked to remove his service animal from the

premises unless: o (1) the dog is out of control and the handler does not take effective action to control it

or o (2) the dog is not housebroken.

When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.”







• Same definition and laws as ADA. • Also applies to entities not governed by ADA.

MHRA defines a Place of Public Accommodation as “a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” (Minn. Stat. 363A.03 Subd. 34).

MHRA - Service Animals

• General Rule ADA Title I does not itself allow (or prohibit)

individuals from bringing service animals or comfort pets to work.

ADA comes into play only if individual seeking service animal or comfort pet is an individual with a disability under the ADA.

If so, then the individual may request that her or his employer allow a service animal or pet as a “reasonable accommodation.”

ADA Title I: Pets at Work

• Employment discrimination is prohibited against "qualified individuals with disabilities."

• “A qualified individual with a disability” is a person who meets the legitimate skill, experience, education, or other requirements of a position that he or she holds or seeks and who can perform the "essential functions" of the position with or without reasonable accommodation.

Title I: ADA Overview

22

• Modification or adjustment to duties of position, employment practices, or working environment.

What Is Reasonable Accommodation?

23

• If an employee requests an employer to allow a comfort pet or service animal to accompany the employee at work, the employer must engage in an interactive process with the employee to determine whether the accommodation is reasonable.

Interactive Process

• Determine essential job functions; • Understand the employee’s functional limitations; • Listen to the employee, considering the employee’s suggestions; • Get outside expertise, if necessary; • Identify potential accommodations and assess effectiveness; • Develop an accommodation plan, involving employee; • Continue to check in, modifying as appropriate; and • Document all steps.

Interactive Process

• Service Animal In most circumstances, use of a service animal is a

reasonable accommodation. However, service animal must help perform essential

job functions, not just provide general comfort.

Service Animal as Reasonable Accommodation

• Clark v. School Dist. Five of Lexington and Richland Counties, 247 F. Supp.3d 734 (D. S.C. 2017). EE was a special needs teacher. Suffered from PTSD and agoraphobia and

requested service dog. School district denied request: worried about

student allergies, distraction, and fear.


• Clark v. School Dist. Five of Lexington and Richland Counties, 247 F. Supp.3d 734 (D. S.C. 2017). Parties disputed whether service dog was necessary

to perform essential job functions. Court denied the employer summary judgment

because EE sufficiently alleged that the service animal was necessary to perform job functions and no other accommodation would suffice.


• Schultz v. Alticore/Amway Corp. 177 F. Supp. 2d 674 (W.D. Mich. 2001). EE worked as a designer for employer. Main duties included developing drawings of

company equipment. EE was deaf and suffered from mobility issues. EE requested service animal at work.


• Schultz v. Alticore/Amway Corp. 177 F. Supp. 2d 674 (W.D. Mich. 2001). However, employee’s essential job functions did not

include tasks that required use of service animal. Employee rarely had to interact with co-workers, and

design work was not substantially impacted by mobility issues.

Thus, court upheld employer’s refusal to permit service animal.


• Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018) EE worked the night shift as dispatcher in emergency

operations center, a small bulletproof room with multiple workstations.

EE sought to bring dog, Mr. B., to work to help alleviate EE’s panic attacks. EE submitted letter in support from doctor.

Defendant allowed EE to bring dog on “trial basis.”

Comfort Pet as Reasonable Accommodation

• Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018) Several employees complained of allergies to Mr.

B. Plaintiff also left operations center to walk Mr. B,

leaving only one inexperienced dispatcher to cover.


• Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018) Defendant denied request to continue to allow Mr. B at

work. Offered two alternatives: o EE work day shift, where there was more coverage in

case EE needed to take a break. o EE bring a hypoallergenic dog to alleviate others’

allergies. EE refused.


• Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018) Court granted defendant summary judgment.

o EE failed to engage in “interactive process” in good faith by refusing reasonable alternatives.

o Mr. B imposed an undue hardship on defendant. There were no reasonable ways to minimize co-workers’ allergies, and building a separate dispatch space was prohibitively expensive.


Don’t Be Fooled Individuals can obtain certifications for emotional support animals. This does not mean that the emotional support animal is a service animal, and does not require the employer to provide an accommodation.

• After employee requests service animal or comfort pet, engage in thorough interactive process.

• Ask about employee’s disability, work restrictions, and how animal helps perform job.

• Is animal housebroken and vaccinated? • Discuss reasonable alternatives to allowing animal

at work.

Practical Tips

• Allergy or sensitivity to fragrance can be a disability under the ADA if it substantially affects a major life activity.

• However, employer need only provide a reasonable accommodation.

• Employer does not need to provide any accommodation that constitutes an “undue hardship.”

Scent-Free Zones Under the ADA

• Cramer v. Allina Health Sys., 2003 WL 22952381 (Minn. Ct. App. 2003): EE worked as pharmacy technician. Following water leak and mold damage in work building, EE developed

sensitivity to mold, perfume, cleaning alcohol, and dust. EE took 3-month leave of absence. Doctor approved her to return to

work, recommended no exposure to substances, but did not find her permanently disabled.

EE requested defendant prevent any contact with substances she was sensitive to.


• Cramer v. Allina Health Sys., 2003 WL 22952381 (Minn. Ct. App. 2003): Due to nature of hospital work, defendant was unable to fully

accommodate EE’s requested restrictions. Defendant terminated EE, and EE declined Defendant’s offer to work at

different facility. EE sued under MHRA for failure to accommodate. After being terminated, EE opened a fitness center and began working

full time. EE testified she controlled symptoms by “avoiding contact with certain chemicals and by taking medication.”


• Cramer v. Allina Health Sys., 2003 WL 22952381 (Minn. Ct. App. 2003): District court granted defendant summary judgment,

finding that EE did not suffer from a permanent or long-term disability.

Court of appeals affirmed, finding no evidence that EE suffered from long-term disability or that defendant “regarded” EE as having a disability.


• Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999). EE suffered from severe sinus attacks that were triggered by common

workplace irritants such as heavy perfumes, smoke, nail polish, glue and adhesives.

The employer “made great efforts” to accommodate the employee, prohibiting the use of nail polish in his department, creating a work station for him in a room with better ventilation and arranging a system whereby he could sign off his phone if he was sensing an irritant and wait for the problem to be remedied by his supervisor.


• Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999). The court held that the employer’s accommodations were

sufficient to meet the employer’s obligations under the ADA. Furthermore, the court refused to require the employer to go

so far as to provide the employee with an irritant-free work environment.


• Kaufman v. GMAC Mortgage, 2006 WL 1371185 (3d Cir. 2007). EE had allergic rhinitis and asthma exacerbated by exposure to

strong orders and perfumes. EE asserted the zero-tolerance policy adopted by the defendant

and the numerous e-mails to co-workers about the policy did not constitute a reasonable accommodation.

EE said defendant’s enforcement of the policy was “half hearted” and asked to work from home.


• Kaufmann v. GMAC Mortgage, 2006 WL 1371185 (3d Cir. 2007).

The court held that the employer reasonably accommodated employee’s disability of being allergic to various scents by instituting a perfume-free work place policy, providing to the employee a fan and a new air filter, and changing old air filters throughout the work place.

The court noted that the employer need not viciously enforce the perfume-free policy in order to comply with the ADA:

“It is unreasonable to expect GMAC could have prevented all violations of its perfume policy, but when employees were suspected of wearing scented products, [the supervisor] responded appropriately, reminding employees, individually and collectively, of the importance of keeping a perfume-free environment.”


• McBride v. City of Detroit, 2008 WL 5062890 (E.D. Mich. Nov. 28, 2008). EE requested that the employer (city) institute a “scent-

free” policy to accommodate her chemical sensitivity. The City asserted that implementing a scent-free policy

would impose an undue hardship, and, therefore, it was an unreasonable request for accommodation.


• McBride v. City of Detroit, 2008 WL 5062890 (E.D. Mich. Nov. 28, 2008). The court held that “a scent-free policy for the workplace is an

unreasonable accommodation because it would require an undue hardship.”

However, the record revealed that the EE was not seeking a “scent-free” policy.

Instead, found that plaintiff was seeking a “perfume-free” policy because during her employment plaintiff provided the city with a sample policy from another city department.


• McBride v. City of Detroit, 2008 WL 5062890 (E.D. Mich. Nov. 28, 2008). The sample policy stated that “[m]ild scents may be worn in moderation,

but strong or offensive scents that become detrimental to the work unit will not be tolerated.”

According to the court, “[u]nlike the policies in Kaufman . . . this type of policy does not require a completely scent-free environment nor does it address the public or those outside a department.”

Thus, the court held that the city was unreasonable in failing to accommodate her by enacting a scent-free policy.


• McDonald v. Potter, 2007 WL 2300332 (E.D. Tenn. Aug. 7, 2007), aff’d, (6th Cir. 2008). EE asserted that she was disabled because of chemical sensitivities,

which caused migraine headaches. EE proposed the following accommodations:

o (1) Creating a fragrance-free environment; or o (2) Defendant actually enforcing the existing fragrance policy,

including extending discipline to offenders. EE, a federal EE, brought suit under the Rehabilitation Act.


• McDonald v. Potter, 2007 WL 2300332 (E.D. Tenn. Aug. 7, 2007), aff’d, (6th Cir. 2008). The court found that EE was not disabled. The court concluded that neither the scent-free policy nor

a more “strictly enforced” perfume-free environment would be objectively reasonable under the circumstances.


• Heaser v. AllianceOne Receivables Management, Inc., 2009 WL 205209 (D. Minn. Jan. 27, 2009). EE hired as a debt collector and the next day EE announced that she

suffered from illnesses triggered by exposure to certain chemicals and fragrances.

Defendant implemented a voluntary scent-free policy. After 26 days on the job, EE took a 30-day medical leave from which

she did not return.


• Heaser v. AllianceOne Receivables Management, Inc., 2009 WL 205209 (D. Minn. Jan. 27, 2009). EE’s doctor would not clear her to work unless defendant:

(1) improved air quality, (2) instituted a mandatory fragrance free policy, or (3) allowed EE to work from home.

Defendant terminated EE. EE sued under ADA and MN Human Rights Act.


• Heaser v. AllianceOne Receivables Management, Inc., 2009 WL 205209 (D. Minn. Jan. 27, 2009). Court found that defendant made as many as 20

accommodations, including: o Special equipment, a private bathroom, training other EEs,

voluntary scent-free policy, discouraging fragrances and special seating and scheduling.

The court also found EE’s requested accommodations to be unreasonable and an undue burden.


• Heaser v. AllianceOne Receivables Management, Inc., 2009 WL 205209 (D. Minn. Jan. 27, 2009). “A mandatory scent-free workplace is not a

reasonable accommodation.” “Reasonable accommodations do not

encompass proposed solutions which would violate the rights of other employees, such as restricting their right to wear fragrances.”


• Rotkowski v. Ark. Rehab. Servs., 180 F. Supp. 3d 618 (W.D. Ark. 2016). EE worked as vocational counselor. Had sensitivity to

fragrances and chemicals, and requested accommodation. Employer implemented no perfume policy and set up air purifier

in common area. Employer later eliminated perfume policy and moved purifier to EE’s office.

Employer later terminated employee following disputes about installing lock on door.


• Rotkowski v. Ark. Rehab. Servs., 180 F. Supp. 3d 618 (W.D. Ark. 2016). EE’s requested (1) an in-office scanner/copier to minimize

exposure and (2) to move purifier back to common area was reasonable.

Court denied employer’s motion dismiss, holding EE sufficiently alleged: o Her fragrance sensitivity substantially limited major life

activities. o While mandatory scent-free policy was unreasonable, EE’s

requested accommodations were reasonable.


• Takeaways Not reasonable to permit employee to work from

home or to mandate a fragrance-free environment.

May be reasonable to implement less-restrictive policies or to take other reasonable steps to minimize exposure.


• Conduct an assessment or survey of the employees to determine the extent of the issue.

• Determine approach (absolute? restricted?) • Train and educate managers and employees before the policy

becomes effective. Emphasize that this is a medical issue, not a “preference.”

• Educate supervisors that this issue is to be handled like a medical matter, e.g. refer to HR, get medical opinion, seek input, etc.

Implementing Scent-Free Policy

• Post a list of "approved" unscented products and where they are available locally. Remember – some products claim to be unscented when they really are just “masked.” Get expert help if needed.

• Post notices that waxing, shampooing, painting, or spraying (etc.) will be conducted one week beforehand so that affected personnel can make arrangements or have their duties modified during that time.

• Put the policy statement notice on all appropriate items, e.g. visitor signs, room booking notices, employment postings, etc.

• Encourage feedback.

Implementing Scent-Free Policy

• The ADA provides that “reasonable accommodation” includes “the provision of qualified readers or interpreters.” 29 C.F.R. § 1630.2.

• However, while common, interpreters do not always constitute reasonable accommodation.

Interpreters Under the ADA

• Noll v. Int’l Bus. Mach. Corp., 787 F.3d 89 (2d Cir. 2015). Deaf EE sued IBM for failing to accommodate

disability by captioning all corporate intranet files and transcribing audio files.

Employer provided ASL interpreter, which EE found tiring and confusing.

District court dismissed because providing ASL interpret was reasonable accommodation.


• Second circuit affirmed “Circumstances can be conceived in which the provision of interpreters would be

less obviously reasonable, or even plainly unreasonable, as when technical material cannot be fully and accurately communicated by ASL. . . . And not every person who is deaf or hard of hearing is able to understand ASL. Logistical constraints arising out of the job itself might also make ASL interpretation infeasible or unwieldy.

In this case, Noll was fluent in ASL, and there is no evidence that the interpreters IBM provided were unqualified or that the use of interpreters was somehow inconsistent with Noll's position as a software engineer. Noll's sole objection—that he had to look back and forth between an interpreter and his screen—did not, without more, make that accommodation unreasonable.”


• Searls v. Johns Hopkins Hospital, 158 F. Supp. 427 (D. Md. 2016) Plaintiff was a deaf nurse who applied for and

was offered a job at Johns Hopkins Hospital. When she accepted the offer, she requested a

full-time American Sign Language (“ASL”) interpreter as a reasonable accommodation.


• The hospital rejected the request, claiming it imposed an undue hardship.

• The Hospital determined that providing the full-time ASL interpreter would cost $120,000, which represented .007% of the budget.

• Hospital then rescinded job offer.


• The court held that providing an interpreter was a reasonable accommodation and that it would not impose an undue hardship on the hospital.

• “The employer’s budget for reasonable accommodations is an irrelevant factor in assessing undue hardship.”

• This would allow employer to avoid liability by not budgeting for reasonable accommodations.


• Public accommodations must only accommodate service animals – not comfort pets.

• Employers must generally reasonably accommodate requests for service animals or interpreters.

• It is becoming more common for employees to request scent-free zones or comfort pets to alleviate disability. These are fact-specific inquiries without clear case law.

• Very important to engage in interactive process to clearly understand disability and justification for requested accommodation.

Takeaways

QUESTIONS?

Thank you.

66

handling difficult accommodation requests to serve your ... · horses if specially trained to...

Documents