Meeting of the Federal Exchange on Employment & Disability (FEED)
November 8, 2018
U.S. Equal Employment Opportunity Commission
Dexter Brooks, Director, Federal Sector Programs, Office of Federal Operations, U.S. Equal Employment Opportunity Commission (EEOC): Welcome to our quarterly FEED meeting. It’s a pleasure working with this group. It has become an integral part of our messaging to the disability community and a way for us to gain information that we need to do better oversight as an agency. As most of you are aware, the group is led by our interagency working group made up of the Department of Labor’s Office of Disability Employment Policy (ODEP), EEOC and the Office of Personnel Management. We share resources to try to tackle some of the tough issues we’ve seen over the last decade related to ensuring meaningful opportunities for people with disabilities. It’s been outstanding. When you see us informally, we are interchangeable parts: Michael, myself, my colleagues Anupa and Mia. We want to present topics relevant to the community. I’m here to welcome you as the host. I’m going to be sitting down with my computers running the online portion because we have folks joining us remotely as well. So, now I’m going to turn it over to Michael Murray from ODEP to give you a formal welcome.
Michael Murray, Director, Employer Policy Team, ODEP, U.S. Department of Labor: Thank you, Dexter, on behalf of Deputy Assistant Sheehy and our Senior Advisor for ODEP. Thanks to the amazing Dexter Brooks. Give him a little bit of love, and also Anupa! I also have to praise my team a little bit for the great work they do, especially Akinyemi. Give it up for Akinyemi! I also want to thank the folks at EARN. Diana is sitting out at the table — there’s a lot to organizing that goes into this meeting. And also the team from OPM who help and support us as well.
I think all of them have done a lot to make sure that quarterly we can come together and talk about the important issues. One of those important issues we’re excited to discuss is service animals. Mia has been doing a lot of work and has put together an awesome panel. Aaron and Katie Wolf, they are going to outline the legal stuff we need to be thinking about. This is an issue that I think all of us know has some complexities to it. There’s a part of you that thinks it should be easy, but once you start getting into the situations, it can get a little bit harder, thinking about how to implement that accommodation. Then there are also those practical applications, those stories from a personal level we can’t leave out. We have Linda Carter and Beth Loy from the Job Accommodation Network (JAN), which is also funded by the Office of Disability Employment Policy. And then Tiffany Jolliff, from my team, is going to tie things up and look at the personal stories and aspects.
But one thing I want to leave you with — I was hanging out with the Executive Vice President for Inclusion and Diversity at Hershey, if you reach under your seat I put a Hershey’s kiss under there. There’s nothing there. [Laugher] I appreciate you checking. My team, you saw them, they didn’t go for it because they know me better. At the Hershey factories they had an employee who was blind who had a service animal and started bringing it in to work. Leadership said, “We could do better. We can do more with this.” So, they started allowing service animal training programs to utilize their facilities as training grounds. Now that’s cool! It’s a good initiative, it shows inclusion. What’s really fascinating is that in the locations where they had this particular program running, there was higher productivity, lower turnover rates, all the stuff that we claim as diversity and inclusion experts make a difference. So, this isn’t just about doing what is legally required or right by folks with disabilities, it’s also about the fact when we create these kind of environments, it’s going to ensure we as an agency can better serve the American people. That’s what it’s all about. We’re going to try to leave as much time as possible for Q and A because we know we are going to get a lot of questions. With that being said, Mia take it away.
Dexter Brooks: Does everyone have an index card to write down your questions? We’re going to let the panel go through their presentations and then we’ll take questions. For the folks online, if you send me an IM with your questions, we’ll get them in queue and Mia will ask them during the Q and A.
Mia Ives-Rublee, Confidential Advisor, Office of Commissioner Feldblum, EEOC: My name is Mia, I am a Confidential Advisor with Commissioner Feldblum at the EEOC. I am service animal user. I do not currently have my service dog with me, but if you work in this office or building you’ve probably seen me with my service dog. I have always been interested in issues around service animals, the laws around them, how service dog users interact with the public and with their employers around having service animals, and also how issues around emotional support animals affect the dynamic within our communities.
So, I’m sure everybody has seen the news everywhere about the issues around service animals, most recently with the airlines. You’ve probably seen a lot about turkeys or peacocks or squirrels. I think the last one was a squirrel. [Laugher] What I wanted to do was talk to you today about how the Federal Government has policies in place that affect our workplaces. And how employers and disability coordinators can help individuals with disabilities integrate into their work environments with their service animals. What I have been doing within the EEOC is I’ve been a part of the Disability Policy Group, which is an interagency federal workgroup that works on issues that disabled people face, the policies that the Federal Government has, how the Federal Government responds to these issues and how different agencies should respond to these issues.
One of the issues that we’re working on is service animals and emotional support animals. We recently created a smaller work group within the Disability Policy work group which is the emotional support animal group. We’ve been meeting with different stakeholders to listen to the community about the issues that not only employers and business leaders face, but also people with disabilities and the disability service organizations so that we can really respond in a respectful manner that is more helpful than detrimental to the community at large.
Today we invited a group of panelists. Michael already sort of introduced everybody but I’m going to give a little more introduction.
First we have Katie Wolfe. She is the Special Litigation Counsel with the Disability Rights Section at the Department of Justice in the Civil Rights Division. Katie has been with the Division and focused on disability rights for 15 years.
Next we have Aaron Konopasky, Senior Attorney Advisor with the ADA/GINA Policy Division in the Office of Legal Counsel at EEOC. He has participated in the development of regulations under the ADA, the Age Discrimination in Employment Act (ADEA) and the Rehabilitation Act, as well as developed numerous policy documents and publications at the Commission.
Then we have Linda Carter Batiste who is a Principle Consultant at the Job Accommodations Network (JAN). She specializes in the ADA and other disability related legislation. She has been with JAN since 1992 and is a member of JAN’s management team. Dr. Beth Loy is also a Principle Consultant with JAN. Dr. Loy serves on JAN’s management team and is a national researcher and speaker in the disability field.
And then we have Tiffany Jolliff, who is a Program Specialist with the Employer Team at ODEP in the Department of Labor. She has worked there four years. She has handled guide dogs for 11 years, is incredibly passionate about service animal advocacy and is now working with her fourth guide dog, Pie. So next I’m going to hand it over to Katie Wolfe who is going to talk about service animals and Titles I and II of the ADA.
Kathleen (Katie) Wolfe, Special Litigation Counsel, U.S. Department of Justice: Hi everyone. You are here to talk about service animals in the workplace and questions about them from individuals like you. And my segment, the next 10 to 15 minutes, is not about that at all. I am going to take a few minutes to talk about titles II and III of the ADA which cover state and local government programs and services and public accommodations, so businesses open to the public. The reason you asked me to come and talk about that today was because a lot of confusion persists across the country as to which rules apply where, and which definitions apply where. And really, what the most important take away at the end of my talk is, is that nothing I say in the next 10 to 15 minutes is directly relevant to the reason you’re here today, but it’s a good context.
One other point on this is that while I’m talking about the ADA, those regulations which were revised in 2010 have a lot of specificity to them. The Department of Justice’s position is that the same non-employment rules apply to Section 504, as well as in the non-employment context. While 504 has much less specificity, we interpret it to have the same rules. The basic rule under Title II and Title III of the ADA is that a public entity or public accommodation shall modify its policies practices and procedures to allow individuals with disabilities to use their service animals. And the rule is that they are allowed to go anywhere that the rest of the public can go and that’s very broad, that’s buffet lines, kitchen areas, anywhere the rest of the public can go.
If any of you have any interest as I’m talking about some of the decision-making and deliberations that went into the rules that I’m going to talk about, the regulatory guidance to the rules in part 35 and part 36 of CFR 28 have very extensive discussions on the service animal rules in 2010. And that’s because although when the ADA was passed in 1990 and the first regulations in 1991, there was a belief that service animals were going to be easy, that it was of no cost – all entities had to do was change their policies, so there were no costs involved. They thought this will be over within two to three years. Everyone will understand this. 28 years later, the Department receives more complaints about service animals, far more, than any other issue. We receive about 15,000 citizen complaints each year and the vast majority are about service animals. So, as Michael alluded to earlier, this is a complex issue and we see that every day.
I’m going to talk about the definition of service animals and here it is in a nutshell. It is the rule that a service animal is a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability including a physical, psychiatric, sensory, intellectual or other mental disability. I would like to unpack that a little bit.
The most significant clarification was made in 2010. The revised definition of service animals limits the species to dogs. Prior to 2010, any animal could theoretically be a service animal. But after 2010, under both the ADA and 504 in the non-employment context, only dogs can be service animals. And the next piece of the definition is that it is a dog that is individually trained. So it must be trained. Professional training is not required. Users can train the dog on their own and many, many do. And it must be a disability related task or work that it is trained for, something for the benefit of a person with a disability.
Just to talk a little bit more about the work or task piece of the definition. And as I’ll get to shortly, that is a critically important part of the definition because it distinguishes service dogs from emotional support animals. The definition of a service animal includes a quite detailed list of examples of worker tasks that service dogs perform and anything from guiding or way finding, to alerting to sounds, detecting the onset of a seizure, assistance during the seizure or retrieving items.
I want to talk a little bit about the types of tasks that we see with respect to psychiatric service dogs. Because I think for these less visible disabilities there’s a lot of confusion among the public, among business owners, among state and local governments as to what psychiatric service dogs can do. Among the examples we list are that they can help individuals with dissociative identity disorder to remain grounded. To enter and examine an unfamiliar space and come back and signal it is safe to enter. We see this with veterans with PTSD who need that assurance. This would be the type of instance where it may be permissible to have the service dog off of the leash or a very long leash just for the amount of time it takes to go in and enter the room. A service dog can prevent or interrupt impulsive or disruptive behaviors. A service dog can also provide nonviolent protection or rescue work, for example while an individual is having a panic attack in a public space. What we do expect with respect to a service animal is that the dog takes independent action to alert the user. That the dog’s action is consistent. Essentially, it’s a consistent response to a demonstrated cue whether that’s a panic attack or something else. And that generally the handler does not cue the dog. The dog has been trained to respond to certain signs that it senses or sees and that response is consistent.
These are all the type of indicators that distinguish a psychiatric service dog or other service dogs from emotional support or comfort dogs. In 2010 the Department clarified its long-standing interpretation that the ADA does not cover emotional support or comfort dogs, and again if you would like to learn more about the decisions underlying that I would encourage you to read the regulatory guidance. If the dog’s mere presence provides comfort, it’s not a service animal under the DOJ regulations. Of course you cannot typically determine whether an animal is a service dog or emotional support dog by seeing the person’s use of it. I’m not quite sure where the distinction gets you, but at the end of the day, that is the rule.
And finally, I just wanted to touch on another distinction that you’ll see when talking about the employment context versus the other context — when it comes to permissible questions and documentation that a business owner or state or local government can ask or not ask for a person who wants to use a service doing. Under the ADA Title II and Title III, there are only two permissible questions and those are: “Is this dog required because of a disability?” or “Is this dog a service animal?” would be another way to ask that question. If the user says yes, you may also ask: “What work or tasks does the dog perform for you?” Those are the two questions that are written into the regulation itself. Now, if the disability is obvious, if the person is blind and is using the dog as a guide dog or some other mobility disability where the disability and the dog’s worker tasks are obvious, the Department’s position is you may not ask those questions, but otherwise you can.
And also a business owner or government worker cannot ask for certification or license or documents of the service dog. DOJ does not recognize any documents sold online by any individual or organization as proof that a dog is a service animal. A dog wearing a vest may be a service animal or may not, it has nothing to do with the determination set out in the rule.
So with that, I am happy to turn it over to Aaron to talk about why you’re actually here today, which is the use of service animals in employment. I can of course answer any questions at the end. Thanks so much.
Aaron Konopasky, Attorney Advisor, Office of Legal Counsel, EEOC: Can you hear me? Okay. So I’m Aaron and I’m happy to be here. And thank you for the information and now you should forget all of it because none of it is relevant at all. [Laugher]. Of course, I say that in jest. But it’s the point I’m going to keep coming back to because I think in the work context, it’s helpful to keep reminding yourself of that. And so we heard that the DOJ regulations were very specific – you had a lot of very specific items. By contrast, with the EEOC regulations, there’s nothing at all. The Commission has never said anything in regulations, and Section 501 of the Rehabilitation Act says nothing itself about service animals. Title I of the ADA says nothing itself, so there’s absolutely nothing out there in terms of guidance about use if service or emotional support animals in the workplace.
There is one sentence in a 1991 technical assistance manual which says that modifying a no animal policy to allow a guide dog for a blind employee is a form of reasonable accommodation. So, we have this one sentence. And that points, I think, to the fact that you can ask for animals in the workplace as reasonable accommodations. The two things I want to keep emphasizing are that there’s no animal specific guidance, and when it comes to animals in the workplace, you should think of them as reasonable accommodations and apply all of the reasonable accommodation analysis that you are familiar with to the specific instance. Think of it as another kind of reasonable accommodation and go through the regular process. And that should make it a little less mysterious.
In some ways, I think that the specificity in the other context itself is what makes it more confusing. Those guidelines and rules, it’s almost like they’re interfering with the regular reasonable accommodation analysis. It’s easy to get distracted by them. If we just remember that to do our normal thing, I think it’s a little bit easier. I’m going to say another thing quickly and I’m not going to dwell on it. Animals in the workplace are reasonable accommodations, but section 501 not only requires nondiscrimination on the basis of disability which includes provision of reasonable accommodations as part of the nondiscrimination obligations, but also requires affirmative action for individuals with disabilities.
The Federal Government is required under section 501 to go above and beyond what Title I of the ADA requires. And it requires agencies, in part, to adopt policies and procedures that are going to aid in the retention and hiring of people with disabilities. So in the beginning of the meeting, Michael was talking about how productivity and retention was up and so on. That’s not just a side benefit, it’s actually, I think, relevant to the Section 501 obligation to engage in affirmative action. Or to put it differently, if you’re an agency that has a generous animal policy, I think that would be an excellent thing to include in the 501 plan as part of the agency’s efforts to recruit, hire and retain people with disabilities.
I just wanted to mention that briefly and then move on, because really what I want to concentrate on is the reasonable accommodation part. This is really a list of things that we haven’t said anything about. But again, it’s helpful to go through them. EEOC has never imposed any kind of restrictions on animals in the workplace or animals as reasonable accommodations. So the first one to talk about specifically is the species. In the DOJ context, we have the limitations to dogs. There’s no such express limitation in Title I of the ADA or under Section 501. There’s nothing in writing saying that it can’t be another species. There have been cases that have addressed this issue, it turns out, although not directly.
There was a case called Mennon versus U.S. Postal Service (?) where a person wanted to bring a bird into the office, a comfort bird. And it turns out he was not allowed to bring a bird, but it was not because it was a bird. It was because he refused to cage it and it would fly all over the place and land on people and stuff like that. So there were reasons why it didn’t work out.
But the mere fact that it was a bird wasn’t the thing that was relevant. You know, if you think about it in the common sense sort of way, I think it’s probably easy to recognize that in most cases, it’s going to come down to dogs. I mean sometimes I use the example of a comfort lion. [Laughter] You pretty much know that’s not going to work out. And it’s almost as if you can fill in anything for that, and it’s probably not going to work out. But you know you can’t decide beforehand. There’s no list you can refer to that says definitively it has to be this or this.
So, the second thing is whether the animal must perform a service or, to put it a different way, whether it’s a service animal. That’s also not specified in Title I of the ADA or Section 501 — there’s no requirement that the animal do a task. Obviously, it includes service animals so people with service animals can ask permission to bring them in as reasonable accommodation, but part of the interactive process is not going to include establishing that the animal performs a specific task that’s related to a disability. There have been no federal sector appellate decisions that have definitively addressed this issue, but there has been a case that EEOC has filed, although I think it might not be precisely on this.
You may have heard about it. It was against CRST international and it was a truck driver who had PTSD and wanted to take a dog in his truck with him while he was driving. This illustrates the oddity. It was inside a truck where only one person was working, but anyway the manager wanted to deny this request, so a suit was filed. The reason it’s not perfectly clear on this particular point is because I think that the dog was trained as a psychiatric service animal. I think the dog was able to identify situations in which the person was having a panic attack or starting to become nervous or something like that. That part wasn’t focused on specifically in the case. A lot of the talk that came out around this case in the media focused on the fact it was a trained animal that performed a particular task. So, I think that’s ambiguous.
Having said that, there is nothing in the Section 501 regulations that limits it to an animal that performs a service. Related to that is certification or training. Now I’ve started to realize that when I say training is not required, that that can be misleading, so I’m going to talk specifically about that. There’s no certification requirement. Probably a lot of you know already that a lot of those certification businesses are kind of fake. You know, you can write in and apply for a certificate and they will issue you one. There are a lot of organizations that are legitimate and that train service animals very well and spend a lot of time and money on it. But unless you know which one is which, that certification is probably not going to mean very much to you. And at any rate, there’s no requirement for it. When I say training is not required, I want to specify what I really mean is that the kind of training that was talked about before is not required, where you’re talking about training to perform a specific disability related task.
There was a moment where I was hearing myself say the animal doesn’t need to be trained, and that can sort of be misinterpreted, I think, because the animal has to behave itself in the workplace context. We’ll see when we talk about undue hardship and the reasonable accommodation analysis that if you have an animal that’s barking a lot or attacking people or doing any of those things that people imagine in their worst fears when they are thinking about animal in the workplace, that kind of animal is not going to be allowed. So, there’s some sense in which training is required. I suppose you could have an animal that magically without any training behaves itself, but practically speaking you are going to have some sort of training, including it being house broken. So, the animal has to be house broken. But like I say, there’s no specific training, no professional training required, no specific training credential required, and there’s no requirement that the training be for a specific disability related task.
So, those are all the things that you don’t have to think about when you think about animals as reasonable accommodations. I’m going to return to a lot of this when I talk about the reasonable accommodation process. As you know, if you’re an agency and walking through this process for the first time, it helps to remember this is something that you’re already familiar with and it doesn’t need to be sort of scary or new feeling. You can sort of walk through the regular process and see how it turns out.
The first thing I wanted to talk about is documentation, because this is a situation that people sort of jump to. Because I’ve found manager want some sort of paper to tell them that this is required or it’s okay, and it’s a little bit frustrating, because, I think, that there is no piece of paper that can perform that function. Like I said, the certifications don’t necessarily tell you anything unless you have a lot of background knowledge. So what do you do? What do you do to distinguish the people who are just trying to bring their pet because they like to have their pet with them from somebody who actually requires the animal to being in the workplace so they can perform their job?
And again, we can turn to the regular interactive process to try to figure that out. So, to remind yourself what can the employer do in terms of documentation during the interactive process: they can request medical documentation, establishing that the person has a disability. Actually, I should qualify that. If the disability is obvious, then they can’t require that. So, you can’t harass somebody who is clearly blind to establish that they are blind. But if the disability is not obvious, they can require documentation, and I think this is going to screen out a lot of the people who are either confused or trying to game the system, because in the case of psychiatric disabilities or a comfort animal, it’s going to require a letter from a psychiatrist or therapist, or something saying they have a mental health condition. A lot of people just aren’t going to have that. So, you can have documentation establishing disability. Remember, though, the definition of disability since 2009 has been very broad. Although I want to say that you can require documentation of disability, I don’t want to give the impression that the documentation required can be extensive. This is supposed to be an easy process based on the ADA Amendments Act.
A lot of medical conditions are going to be disabilities under the new rules, including a lot of mental health conditions like major depressive disorder, PTSD, etc. Those kinds of things are almost always, if not always, going to be disabilities under the ADA. In a lot of cases it’s going to come down to verifying the person has a diagnosis. But that’s going to do some important work I think, in this context, because I think there are going to be some people who don’t have diagnoses who are going to try to bring in an animal. This is the first step in making sure that this is a real thing, that it’s actually going to be a legitimate request to help them to do their job.
People who need service animals because of a physical condition, like I said, that’s I think almost always, if not always, going to be a disability. I don’t know that there’s much of a reason to even check in those cases because it’s going to be obvious. And in that case, you don’t want to be asking for a lot of medical documentation. So there’s that, and then there’s also the documentation establishing the need for accommodation, and this is going to be trickier than the other one in this particular case because I think the concept of service animals and emotional support animals and all of those things is a little bit new. And I think that the medical community might not have a system to generate the kinds of things that the employer is going to want to have or going to want to ask for in the interactive process.
In the case that I was talking about before with the truck driver who had PTSD, the press announcement that went out described his doctor as having prescribed the dog, which is I thought kind of a funny way of putting it, but it was also a nice way of putting it because it makes clear this is a sort of like a medical treatment. This is something that he has, a disability, that the dog helps with specifically, and you can get a medical provider to verify that. Now I doubt it was actually written on a prescription pad, but there was some kind of letter there where the doctor was able to say this is a real thing, and an emotional support animal or service animal is going to help this person by enabling him to avoid panic attacks or whatever it was.
So, asking for documentation, medical documentation, of the need for accommodation, and also specifically of the effectiveness of this accommodation, is potentially going to seem a little weird to some doctors I think. However, having said that, I think that if a doctor knows that the person is asking for this as a reasonable accommodation and that it’s actually helpful for the person’s symptoms, you probably aren’t going to get a lot of push back from the doctor if they’re asked to write something in support. So, you can probably, if you ask for it specifically, get something in writing if the claim is legitimate showing that this is actually a helpful thing for the person.
By the way, underlying all of this is the fact that there is a lot of medical research showing that emotional support animals in particular are very effective, that they are oftentimes more effective than medication. And so this is a real thing that a lot of people need in order to live their life. So again, I don’t think a doctor, if they know what they are supposed to write, would have all that much trouble giving you what you need to know.
So, the need for accommodation. Sometimes people get confused by this idea, so I just want to sort of make sure that there is no such confusion. Sometimes when the employer asks for documentation showing that the animal is needed because of a disability, the thought is that the animal has to be helping the person specifically perform job functions. And you get this confusion not just in animals, but in all sorts of different kinds of areas. It’s as if the manager is requiring the dog to actually hold a pencil or retrieve what the person is working on or something. If the person needs the animal in order to stay in the workplace in order to be productive, in order to do his or her job or enjoy equal access to the benefits and privileges of employment, then that’s enough to establish that the person needs the accommodation because of the disability.
So, it’s not as if there has to be this very tight connection between the accommodation and essential job functions. I think the reason people get confused is because there’s this sentence, this way of putting things, which says you have to need the accommodation in order to perform the essential functions of the job. But don’t interpret that too literally. There have been cases, at least one case, that has focused in on this idea of needing the accommodation in the workplace. So, it is a real issue. The case was called Struthers v. Department of the Navy. The complainant asked to bring her dog to work to manage depression and anxiety. This is a legitimate request, but it turned out that the complainant’s anxiety triggers, the things that caused the need for the animal — things like being in crowds and being around strangers — those things didn’t happen at work. So, it was determined that bringing an animal into the workplace wasn’t specifically required because of this person’s disability because the workplace was not a place that triggered the symptoms.
That’s the kind of situation in which it’s important to see that there’s this connection. There does have to be some sort of connection, it just doesn’t have to be an incredibly tight connection between job functions or tasks and the accommodation. Again, there’s no requirement to show the animal is trained in that special sense or certified. That just reflects the previous point. I do want to say a little bit about asking questions.
Under the DOJ regulations, the number of questions you can ask and the content of the questions was very prescribed. In the interactive process context, when you’re talking about reasonable accommodations, there are no rules about asking questions. You can ask a lot of questions. As far as I can tell, you can ask whatever questions you want. So you could ask to see whether the animal was certified or trained, you could ask to see whether it performs a particular function. It’s just the answers to those questions might not be dispositive because there’s nothing in the regulations that says it has to be this way or can’t be that way.
Suppose somebody comes in and they say, “I want to bring my dog into the workplace” and the manager is trying to figure out what that’s going to look like, is the dog going to be okay, is it sick, is it going to attack people? The manager has never met the dog before. One thing that the manager can do is ask to see the dog and ask whether the dog has been trained by a training organization. So if the dog is a service animal, for example, that has been trained by one of these organizations that does this sort of high powered training, then that by itself might be sufficient to tell the employer this dog is going to be okay – this dog has been trained for years and is not going to be disruptive and that kind of thing. If the animal has not been trained by one of these organizations, I think that’s where there needs to be a further step. There has to be some other way that the manager is going to try to figure out if it’s okay to bring the dog in.
I want to talk about alternative accommodations. This is very tricky issue in here and there are a lot of cases in which the EEOC hasn’t said anything and regulations don’t say anything where we can fall back on existing guidance to give us some direction. This is a situation in which it’s a little bit of a gray area. Because on the one hand, we always say that the employer can explore the possibilities of alternative accommodations. One of my colleagues always gives the example of the gold-plated chair. If one of the employees wants some special chair that costs thousands of dollars, the employer is allowed to look at other chairs or other solutions that don’t cost quite as much. If it’s effective, they can substitute that accommodation.
So we have that principle out there that it doesn’t have to be the number one choice of the person. On the other hand, we also have the principle that the employer shouldn’t interfere with the medical treatment of its employees. So, the employer can’t be saying, “Well, what about this other medication, don’t you want to try this type of therapy rather than that type of therapy?” Or to provide another example, “What about a prosthesis instead of a wheelchair?” We don’t want employers to get into that kind of personal medical decision.
So, the question really is whether animals or certain categories of animals, if it comes to that, are more like prosthesis or medical treatments or are they more like a screen reader for somebody who can’t look at a computer screen without some sort of assistive device? I’m not sure there’s an answer yet. It does seem at least in a lot of cases that the animal is acting something like a treatment, or something like a prosthesis in that it’s providing these personal medical services. In that type of situation, I think the employer, just to be safe from a 501 compliance point of view, probably shouldn’t be suggesting alternative accommodations unless there’s some real need for that.
I think this is a situation in which the handler is going to probably know a lot more than the employer about how important the animal is to them. And like I say, although I don’t think there’s any kind of definitive answer, I’d want to caution people about alternative treatments. And you can see it in the case of service animals that are used for people with physical disabilities, for example, that that’s just not going to work. I can’t imagine the case in which it would work to be honest. That’s kind of a nonstarter to think about alternatives for service animals for people with physical disabilities. When it comes to psychiatric conditions, that’s where it gets a little tricky. But I would want to caution people. The best we can say for now is that employers generally should avoid requiring alternatives to service animals.
And we’re finally going to get to the favorite topic — the effect on other people. So, this is what we hear a lot and I think the people from JAN are going to talk about this as well. Employers are always very worried about what the effect is going to be on other people in the office or whatever the work environment is. And the first point I’m going to make is a point about disability, which is if the other person has a disability. So, if the other person is severely allergic to dogs, for example, you’re going to have to provide a reasonable accommodation for that person because of the allergy. If the person has a real phobia that can be diagnosed and would interfere with them doing their job, then that might be a situation in which you have to provide a reasonable accommodation to that person for the phobia. And whenever you have sort of disabilities that bump up against each other, it becomes more complicated and people aren’t totally unfamiliar with this.
For example, if the person is allergic, you could arrange for the two employees to have separate paths of travel where they don’t run into each other. You could arrange for one of them to telework so that they don’t come into contact very much. They could participate remotely in meetings with the other person, even if the person is in the office. The person can stay in their office and call in to the other room because the other room is going to be the one with the animal in it. So, there are lots of things that you can try to do. And it’s a problem-solving exercise that is not necessarily easy, but certainly something that people have done before and in a lot of cases, you’re going to be able to find a solution that’s going to work for everybody.
To take the point more generally, there are cases in which animals’ effect on other people is going to be disruptive. And again, fall back on the idea that the animal is a reasonable accommodation. So, what you’re going to do is analyze the issue as a normal reasonable accommodation request, which brings you to the undue hardship analysis. You’re going to analyze whether the presence of the animal in the workplace is going to cause an undue hardship. For example, if the animal is disruptive by not being housebroken – like in the case with the bird, it was not housebroken. If the animal is barking all the time, it’s going to distract people and annoy people; if it’s not properly cared for by the handler; if it’s not taken out to use the bathroom; if it’s not given all its shots or vaccinations, etc. That’s a situation in which it might be an undue hardship to let the animal in, so the employer can exclude it in situations like that.
There’s also the direct threat issue. If the animal is dangerous, obviously that’s going to be a problem, or threatening, that’s going to be a problem, even if the person says, “Oh, no, he would never actually do anything.” But in a workplace, you can’t have animals that are growling at people or snapping or barking at them. Those points I think are easy to understand generally, where the employer can exclude animals if it’s an undue hardship for one of these reasons, for example.
The question of how the employer figures out whether the animal is going to be an undue hardship, that’s a separate question. The employer could ask for some paperwork to solve the issue. But I’m not sure that’s going to solve the problem, at least in most cases. I think the advice that is the most common that I’ve heard is to do a trial run. The safest thing to do from a 501 compliance point of view is to do a trial run. Then the agency is trying to find a reasonable accommodation, giving this a shot. If it turns out the animal is dangerous or not house broken or whatever, the employer can exclude the animal. I don’t know if there’s any way to tell beforehand. And you know you’ve got to think about if the person files a complaint and there’s a lawsuit, what’s going to matter is whether the animal is in fact going to be an undue hardship. So you don’t want to take a chance excluding animals that might be okay. You might be liable for an accommodation. I think that the safest thing to do from a 501 compliance point of view is to give it a trial run. I think I should probably stop speaking now, and then we can get to questions later.
Dexter: Thank you so much. The next group of people that are going to be talking are from JAN. Can you hear us JAN? Linda, Beth? Wonderful, I’ll hand it over to you.
Linda Carter Batiste, Principal Consultant, Job Accommodation Network (JAN): We’ll go ahead and get started. We are joining you today from West Virginia. For those of you who don’t know what JAN is, it’s the Job Accommodation Network and our mission is to provide no cost technical assistance on job accommodations and the employment provisions of the Americans with Disabilities Act, which would be Title I.
Throughout our day, we take a good many accommodation related questions. We receive about 47,000 contacts a year and those contacts all have different types of questions. A segment of those questions involve accommodations, and about 5 percent of all accommodation related questions we get are related to service animals. So, we get quite a few. As you’ve already heard, there aren’t really any rules or guidances that specifically address service or emotional support animals as workplace accommodations.
So, what we want to do this morning is share some of the issues that we hear about, starting with accommodation issues, as well as practical suggestions we have for dealing with these types of issues. First and foremost, we’re going to talk about accommodation issues. And just to go ahead and address the accommodation issues, we want to highlight something that Aaron mentioned in his comments. So, can a request for emotional support access be denied based on coworker or customer client allergies or phobias? An example I wanted to share with you is about an accountant.
This accountant asked to bring a service animal to work. And the accountant has to work in a team and a team member is allergic to animals. Can the employer deny the request because of the coworker’s allergy? How would we address this? We get lots and lots of questions related to allergies and phobias. A lot of times it’s just a fear that someone might be allergic or might have a phobia, it’s not even any concrete information that somebody does. In this example the employer was aware that one team member was allergic to animals, so the first issue is what kind of animals is the team member allergic to. Is this even an issue? We want to make sure that there really is an issue before moving ahead any further.
Assuming there is an issue, there might be ways to accommodate both people. In this kind of situation, we get a lot of push back from employers who feel face to face meetings are critical to the teamwork, and they don’t want to do remote work, so we suggest maybe they talk to the person who wants to use the service animal about the issue and see if he or she can be without the service animal to attend face to face meetings. So, first make sure there’s a problem and if there is one, try to accommodate everybody involved. We do have a publication on that which Beth is going to share the link to later.
The next question that we get is related to cleaning up after the service animal. So, the question is, can an employer require the employee to clean up after their emotional support animal, and usually our questions involve things like hair or dander, feces, urine or even drool. An example here that we recently had involved an employee with quadriplegia who uses a service animal, and in this case the individual was not able to pick up the animal’s feces. How do we address this question?
I think Aaron mentioned this as well, the employee who uses a service animal is responsible for the care and clean-up of the animal. It is required the employee take that responsibility. There could be times where the employee needs an accommodation in order to do that. In this example, depending on the person’s ability to move his or her arm or hand at all, there may be some poop scoops that can work with someone who doesn’t have full use of their hands. We look for products to overcome that problem when that’s an issue.
When there is no solution so that the person can independently pick up the feces from the service animal, we talk with employers about considering having their janitorial staff or groundskeepers do this task, if they already have people that clean up in the yard or the grass around the building, and that person sometimes already picks up dog feces from other people walking by. We suggest maybe that would be equal opportunity there to have the cleaning crew help with that situation. Some employers are willing to do that. If that’s not an option, and there’s nobody responsible for that, the other thing we heard is allow the person to have somebody help them with that. Sometimes that’s an effective solution. We also refer to independent living centers sometimes they have ideas about how to deal with that kind of thing.
Beth Loy, Principal Consultant, Job Accommodation Network (JAN): Another common question that we get is, “Can a service animal actually be restricted from certain parts of the workplace?” Let’s say, for example, we have a cashier who works in a food service establishment and the cashier wants to use an emotional support animal at work. In this situation, the employer oftentimes is concerned about having the dog in the work environment around food, and wants to know if the request can just simply be denied. We get this kind of question a lot in food service work environments, as well as hospitals and other healthcare environments. And we can’t specifically address where an animal is allowed to go in those kind of settings, but we do suggest that the employer check with the food code. There may be a way for the emotional support animal to be at the cashier’s workstation as long as it doesn’t go in the food prep area, and there are rules about that. When we get this kind of question, we suggest that the employer make sure that there really is a problem or that they have to deny it on that basis.
Here are some of the other questions we get around accommodation. One of the questions is, what if an employee wants to have more than one service animals, say they request a pair of animals. The guidelines on these issues take the same approach, take it on a case by case basis, meaning that the animals serve the person and maybe it’s do-able to have them both in the work environment.
We also get the question that Aaron brought up about exploring other accommodation issues or options. In addition to what Aaron mentioned about trying to stay out of someone’s personal medical decisions, we also talk with employers about the fact that the service animal may help with issues that really aren’t in the employer’s purview, such as commuting to work. For some people, the issue is about a sense of security. The dog actually helps with making the person feel safe and protected should there be some medical event, and these are things employers typically aren’t involved with or where there isn’t something else that could really replace the service animal. These are the types of things we talk to employers about.
The other accommodation question that we get a lot is, “Do we have to consider allowing an employee to bring in a service animal to train them?” As you heard, sometimes individuals train their own service animals and they want to bring them in as part of the training, so they can get used to the work environment. And the answer is, maybe. Take it on a case by case basis. It could depend on how much training the animal has had. It may be that the animal could be in the work environment without disrupting it and is able to perform some service while it continues its training. So use a case by case approach.
So, just to summarize, when we get asked about these accommodation issues, we always remind employers to take it just like making any other accommodation and process the request on a case by case basis and don’t make assumptions. Again, we get so many employers calling that have already made assumptions that the dog is going to do this, or this is going to happen, or people are going to complain or be allergic. So, we just suggest that they get the assumptions out of their mind and just look at the facts and move forward like any other accommodation. Allow the service or emotional support animal when possible, for the reasons that we mentioned, and then try to customize your accommodations. Don’t deny an accommodation just because they think the animal can’t be in the work environment or because someone might be allergic. Try to customize your accommodation to work for everybody.
One of the questions Linda and I get in relation to documentation, with every service or emotional support animal call, is: “How can we document that the service or emotional support animal is really needed and is performing the duty it’s supposed to be performing?” So here is a recent example that Linda and I were talking about as we were preparing for this presentation: an employee who had a seizure disorder trained his own dog to detect when he’s about to have a seizure. In this case, the employer was very skeptical about this and wanted proof that the service animal would actually do this task. We mentioned earlier it can be difficult to prove what the animal actually does. You really can’t just trigger a seizure and watch the animal perform its duty. Documentation may be impossible. So what we suggest is, from a practical standpoint, you can get your documentation if the person has a seizure disorder. A lot of times the doctor is not involved in acquiring the service animal. When they are and you can get that documentation from the healthcare provider, that’s great. We hear from a lot of employees who call us that the doctor is skeptical whether this animal can even do this and isn’t willing to document anything related to it. So we sometimes do suggest a trial period.
If an employer is concerned about that and doesn’t want to do a trial period because they’re afraid of what might happen, we suggest maybe a demonstration. Bring the animal in when everybody else is not there, watch its behavior, make sure it can be in the work environment without barking or being out of control. Sometimes it is better to get the documentation you can get and move on. Don’t insist on documentation of what the animal can do it because sometimes that is impossible.
We get a lot of questions about certification and proof of training and “Can we require the dog to have grooming, vet cleanings, vaccinations, etc.?” Again, there will be different answers for that. For some employers, we suggest maybe just bring the dog in for a demonstration. If it looks clean and healthy, maybe you don’t need to make the employee jump through all of those hoops. If there is an obvious problem, yes of course you want to address it. But if there’s not, then maybe you don’t want to go through all of that.
With the certification, the other question we get is, “Can we accept certification if we want to as proof?” The answer is absolutely. The employer can accept any documentation they’re comfortable with. If the employee has certification and training and wants to provide that, then great. But these are issues that we get a lot of questions about, so we sometimes just suggest try it out, see how it works, and that has worked for a lot of employers.
Linda Carter Batiste: I always like the periodic grooming question. My question is, do you require other people in your workplace to have periodic grooming? [Laughter]
Beth Loy: Related to documentation, disability can be documented in the regular way. If it’s obvious, then we stop there. If it’s not obvious, you can ask for limited medical documentation and always consider other documentation related to the service or emotional support animal, especially a demonstration or trial period, which we have had great success with the employers that we’ve suggested that to.
[Refers to slide]: This is one of our favorite pictures that we use. This is the issue of liability. Some of the questions that we get surrounding liability have to do with who is responsible when an animal gets hurt or the animal hurts someone else. We recently had an employer who allowed an employee to bring in an emotional support animal to work, but the animal bit a coworker and they had to have stitches and the employer wants to know who is liable for the bill. The follow-up questions related to the scenario are, “Can we require the employee to carry liability insurance?” and “Will that then protect the employer if something happens in the workplace?”
You should probably have guessed that we can’t answer liability questions here. We don’t know what the employer’s liability is, so what we suggest is that they check their liability policy, if they carry one, or check with workers’ compensation to see what their liability might be. But the other thing that we often suggest is that you don’t treat this employee differently than other employees. If you’re responsible for someone in the parking lot wrecking into another car or if you’re responsible if some employee spilled their drink on the keyboard — if you generally take responsibility for accidents in the work environment, maybe don’t treat this situation any differently than the others. That doesn’t mean you can’t say, “Don’t bring the service animal back until we have proof it’s trained not to bite people.” You certainly didn’t have to allow that to continue, but as far as liabilities, check your policies and make sure you’re not treating this person differently than any others.
When a service animal comes into a workplace, what can workers be told about the service animal? This could sometimes be a fairly tricky question. Let’s say an employer allows an employee to bring in a service animal. The coworkers pet the animal. Can the employer rescind the accommodation just on the basis of that being a distraction? We get this a lot. What happens here is that there was no conversation about this in the beginning, before the animal came in. It wasn’t addressed. If the coworkers don’t know that it’s a service animal, sometimes it’s an emotional support animal, and of course they’re curious when an animal shows up. Animal lovers want to pet and hang out with it. The employee will go to HR and say I need them to leave my service animal alone because it’s disrupting its work. And then the employer is bound by ADA privacy rules, so the employer is kind of in a bind in this situation.
What we suggest is to talk to the employee about how to educate their coworkers. A lot of employees are willing to do that if the employer talks with them about how that could happen. Maybe bring somebody from the outside in to do the educating, or sometimes the employee is willing to do it themselves. When an employee is not willing to do it, and we’ve had that come up before, they just don’t want to educate coworkers, they just want it to somehow happen, what we suggested to employers is if it really, truly is disruptive and if coworkers are not informed, the best the employer can do is say, “Stay away from the dog, leave it alone, stop petting it,” things like that, which kind of creates a weird situation. It’s not as effective as really educating about service animals, but if that’s an individual’s choice, then that’s what you can do.
If the problem continues, I think the employer needs to talk to the employee again about the fact this is becoming disruptive and talk about ways to address it. Generally speaking, with the employees we talk to they want to educate coworkers. They want it to be a smooth situation and they’re willing to do that. So, that’s kind of how we approach that with employers.
Our last question here is, “What can customers, clients, patients, etc. be told if they will be in contact with the service or emotional support animal?” An example we pulled was a case involving a home health aide who is acquiring a service animal, but part of her job involves going into homes with clients. Can an employer deny a request based on that part of her job? There is really no guidance that we can find on this. What we suggest to employers is, again, talk with the employee. Obviously, they can’t just show up in people’s homes with a dog. There could be other dogs there, there could be children. I mean, you’re providing a service, it could affect the service to show up with a dog at someone’s house. So again, the employee and employer need to have a conversation about how to handle the situation, to see if it’s okay to bring the service animal into the home. We’ve also had people that want to leave the service animal in their car and we get lots of questions from the employer like, “What if it’s hot?,” “Is that safe?” “Can we get involved in that?,” etc. Again, we don’t have answers to that. But we really encourage the employer and the employee to try to have that discussion to resolve all these issues. If the employer is concerned, if it’s an agency car or company car that the dog is in, there are questions surrounding that. Start with a conversation and hopefully that will resolve the issue.
Generally, with confidentiality rules and issues, we have had some employers report they’ve done general disability awareness training in situations where some people may need service animals. It’s good to do that ahead of time. But, generally, the training can be very helpful and then talk about doing some specific training, if the employee is comfortable doing that. Make sure you don’t coerce the employee into doing that.
We will wrap up here with our service animal resources. These are probably the three most common resources our customers use and you can find those on the AskJAN.org website. If you go to the agency section under topics, there’s an entire service animal section and these three documents, as well as documents from DOJ and EEOC, are all highlighted. You’ll find several organizations, articles, situations and solutions, as well as different types of accommodation questions and answers. With that, we’ll wrap up.
Mia Ives-Rublee: Thank you so much for presenting. That was really interesting for me as well. Next what I want to do is, you know you’ve heard the employer side of things, right? The basic framework of how to interact with employees with service animals and emotional support animals. What I want to do now is talk about personal experiences with individuals with disabilities who use service animals as a tool to help them manage within their environments. So that’s why we brought in Tiffany. And I’m just going to ask Tiffany a couple of questions and she’s going to provide some good personal feedback on the employee side. So Tiffany, what makes a service animal helpful for you and your personal experiences?
Tiffany Jolliff, Program Specialist, Employer Policy Team, ODEP, DOL: Good morning, everyone. For me, having a service animal was actually kind of a journey to get there. At first I thought, “Hey, I’m not going to get a service animal because having one will make me look blinder,” and well, that’s dumb. [Laughter] So anyway, I really have found the benefits of a service animal mostly after moving to DC. I feel that a service animal provides me with a lot more safety than I get with just a cane, especially in the metro. There have been a lot of stories recently about people falling in the tracks using their canes because they think they are walking into a door and it’s not a door. My service animal is good at finding the door and shoving his way in and finding me a seat really fast. It’s a really cool thing. I feel like I walk more confidently and quickly. It feels like a more fluid way of getting around. So service animals provide me with confidence and more efficiency with work and at home.
Mia Ives-Rublee: So it sounds sort of like there’s a lot of benefits that people might not notice immediately when you have a service animal.
Tiffany Jolliff: Absolutely. People see this cute furry bundle of joy just prancing along next to you, a lot of times my current dog, Pie, is wagging his tail just looking pretty happy to be there. What I don’t think people notice is the focus, he’s very labor focused. He needs to be focusing on what he’s doing. So, the thing that I kind of tried to educate both the public and my fellow coworkers on is the best way to interact with my service animal is to not interact with him. Pretend he’s not there. Even right now he’s lying there looking cute and cuddly. They are on call, whether they look like they are working or not.
Mia Ives-Rublee: Have you faced any issues when bringing your service animal into the workplace?
Tiffany Jolliff: You know, policy wise, no. I have never faced an issue. I have worked for a nonprofit and for ODEP. Those have been my two major forays into the workplace. At my nonprofit, we focused on blindness. They had leave policies if you needed to train with a new guide dog. They actually gave two weeks of paid leave for you to go and train with your new service animal. At Labor, they have a policy for all employees that gives us 40 hours every fiscal year to do our own personal training, so I was able to use that actually twice in this past calendar year to go get dogs. My third dog did not work out and Pie is my most recent acquisition.
Labor and ODEP have been great at allowing me the training to have my accommodation with me. As far as people, at ODEP, they let me send out an email saying here is my guide dog and here are some rules on how to approach someone with a service animal. But sometimes you get the people in there that are like “Oh, he’s so cute! When is he going to be done training so I can pet him?” I’m like, “No, no he’s not here for you. He’s here for me.” I’ve replied to this question, “You can pet him when I can drive your car” and they tend to back off a little after that. [Laughter] It’s kind of a common sense thing. You get some people that are like, “Well, your dog retired. When are you going to replace it?” Ouch. For me, I’m just like, engage with me, talk with me. Because I have a lot of interesting things to talk to you about, not just my dog. So, that’s really the only thing I notice in the workplace. My workplace has been incredibly accommodating, but it’s all about education and just making sure that everybody is comfortable with each other. And make sure to always talk to the employee and not the dog, that kind of stuff.
Mia Ives-Rublee: I think those are good reminders. What processes have you had to go through in order to ask for this reasonable accommodation?
Tiffany Jolliff: For me, it’s been very informal. And I understand that other employers might need more formality about it. Really, I have just talked with my bosses and said, “Hey, I am retiring a guide dog and I need to go get a new one. I can let you know the dates that I’m going to be gone. I will work with you on leave.” I always try to be as accommodating as possible because I know there’s a big chunk of time where I’m going to be out of the office and I want to make sure my work duties are taken care of and covered. I think that’s important as an employee. Work does go on when we’re not there and we need to make sure that’s addressed.
I faced kind of a hard situation again. My third guide dog retired after three months because she thought walking me into traffic was better than guiding me down a particular route. [Laughter] So I had to go back to ODEP and say, “Hey, you guys gave me this 40 hours, but what if I get into another [training] class before the next fiscal year starts?” So, my bosses in leadership worked together and said, “If you get into another class before the next fiscal year, we personally will give you another week of training.” It made me feel a lot more included and just very respected as an employee. Fortunately, my training actually started on October 1, so it actually ended up working out fine. It’s been informal, I didn’t have to provide any documentation. I think the main thing is to communicate. Having that two-way communication is just so important.
Mia Ives-Rublee: That’s great. Now we have Katie talking about Title II and III and, as we know, for the most part when you’re in the employment setting, you are mostly addressing Title I. However, how does Title II and III affect an employee? Would it affect the travel? What kind of things could affect them in their duties as an employee?
Katie Wolfe: I think you’ve really hit it on the head with travel. Whether it be your commute, if you’re trying to take a Lift or Uber and get denied access because you have your service animal, or whether you’re on flights and it’s a different law, it’s that Air Carrier Access Act. But things are starting to become more restrictive because of people trying to game the system on airlines. So, if you have work travel, currently service animal handlers cannot check in curbside with their luggage and things like that. I’m not exactly sure why, but that’s a new policy that’s being handed down by a lot of airlines. So, we’re under a microscope a lot more now when it comes to traveling both on our commute and on a plane because people might have had a negative experience with another animal and kind of generalize it to no matter what animal you have.
I’ve heard of hotels asking you for certification of your service animal before they will let you stay and also making you pay a different pet deposit. That might be something someone might face at work. I think just knowing the laws and being really well versed in them, which thank God for this presentation. I didn’t know this stuff and I’ve been handling for 11 years. Making sure you are educated as a handler before you get sent out on work travel and things like that, I think, makes things a lot easier.
Mia Ives-Rublee: As a service animal handler myself, one thing I would suggest is to inform your managers that the worker with a service animal might need extra time getting to locations, especially if they are having transportation issues or issues at the hotels or other locations that they have to interact with just due to issues around Title II and III. Do you have any other suggestions to program managers, employers, anything like that, on how to interact and best integrate an individual who has a service animal or emotional support animal?
Katie Wolfe: I really say just treat these people, these employees who choose to partner with service animals, as you would treat any other employee. A service animal is there for that person only. And so really it shouldn’t impact anyone else’s work, including the employee who chooses to work with the service animal. So trying to stay as normal and cool as possible is always a good road to take.
Something that’s kind of interesting that some federal agencies have done, and it sounds like a small thing but it’s actually really cool, is that people will have a service animal and the agencies will realize, “Hey, we need a relief area for these dogs.” And they’ve actually gone and built just small little areas that have a trash can and some like disposal bags or whatever. But it’s just really nice for the employee to have a place where they can take their dog every day and know they are keeping their agency clean and sanitary, and like I said it sounds small, but it’s actually really cool. I think it’s a nice thought to maybe try and implement if you can. If you can’t, well, that’s how it is. But it’s kind of a cool idea. But really I just want to go back to making sure that lines of communication are open, and just treating the employee as you would treat any other employee.
Mia Ives-Rublee: Thank you for your personal experiences. I hope that helped everybody. I want to thank everybody who is on the panel. We’re going to answer some questions now. So feel free, if you have questions to write them down or if you want to raise your hand. I’m going to ask a couple of questions that we’ve already gotten and people can sort of buzz in as they see fit, including Linda and Beth. The first question is, “Is there any law or regulation that prevents the agency from asking, “Does the animal perform a specific task related to a disability need?”
Unknown Speaker: No. I don’t know why you would want to ask that, though. Why were you thinking the employer would want to know?
Unknown Speaker: Well, that was something that we were trying to figure out. So when a person is asking to use a service animal, we’re asking them, in the Title II and III, what type of task will the animal perform based on the condition that you have? So, if they have PTSD, for example, what will the animal be doing? We were trying to ask the question that is being asked in Title II and Title III. I’m wondering is that appropriate for us to ask that? I know you have mentioned earlier it could be a part of the interactive process, so I felt like that answer was already provided.
[Unknown Speaker]: Well, it sounds like what you’re getting at is the connection between the disability and the animal. In the Title II and III context, that comes down to the task, the performance of a particular task. But the more general way of asking it in the Title I context might be, “How does the animal help with your disability?” So that’s more inclusive and open than the more specific question about task. If you’re the employer, you don’t want to get caught where you ask if there’s no task or no function and they say there’s no task or function and then you say “Well, then you can’t have it.” Well, there might be a non-task function that the animal is performing that they need because of a disability. So if it were me, I would phrase the question more broadly, and that would be fine.
Mia Ives-Rublee: The second question is: Can the employee use annual leave or sick leave when dealing with a service animal that’s ill or do they only use annual leave?
Unknown Speaker: I’m just glad you didn’t ask about FMLA. But that sounds like a particular policy. I mean, I don’t know the answer. I don’t want to say that I know the answer, but that sounds like it comes down to the policy of the agency and how the sick leave policy and animal leave policies are written out. The sort of back stop is that if the person doesn’t have either of those available, would the agency still have to provide leave as a reasonable accommodation? So, there are those two kinds of leaves. The one you use would depend on the policy of the agency. Regardless of the policy of the agency, if the person needs to use leave for that reason, they could ask for it as a reasonable accommodation. Now whether that leave as a reasonable accommodation has to be paid or not is the slight complication there. A person might end up having to take leave that’s not paid, but they should be allowed to get it one way or another.
Audience Member: This is a very unique and a different situation. So I work for the Peace Corps. We take volunteers from the U.S. and send them abroad to about 65 different countries. We’ve had requests for an emotional support animal as well as a service animal to travel with volunteers and live in country. We’ve gotten an ask from the country for documentation, for being able to bring, essentially, a foreign object with them into the country. As I’m listening to the presentation, I see there’s no coverage under the ADA, no specific requirement for a specific task or limitation. I’m hearing there’s not a lot of specifics. I’m wondering if there’s anything that perhaps was not mentioned that we can utilize to leverage our support of our volunteers that are going abroad. If you don’t have an answer, that is fine as well.
Unknown Speaker: I can make something up. [Laugher]. I’m not sure. Maybe it’s not clear to anybody, but what is the other country asking for exactly? Do you know what would make them happy?
Audience Member: They want some type of documentation that says it’s under U.S. law and/or policy that they should be accepting of this foreign animal to come into country. We’ve explained that it’s because of accommodation, because our volunteers need this animal to be with them, but they want some type of piece of paper that they can take to their local entities, local authorities, because they may say, “This is not an animal that is normally found within our areas. Is it diseased? What if it bites somebody?” All those questions come up.
Unknown Speaker: They want something saying a U.S. law requires them, the foreign country, to accept the animal? That seems like an unusual request to me.
Audience Member: At minimum, they want to know that the U.S. does allow for people to bring their animals with them in different locations, into federal spaces, educational classrooms, etc.
Unknown Speaker: It sounds like you’ve already told them the answer, but they don’t like it for some reason.
Audience Member: That is accurate. I wanted to ask if there’s anything additional other than our certifications.
Dexter Brooks: This is Dexter. In the sense whether it be DOD, Peace Corps, State Department, etc., sometimes you do the Status of Forces agreements, where you will negotiate with the host country the parameters of the state of your employees. And because this is new and novel, that’s not something that’s been negotiated with the whole country. This is a lesson learned for the community as we’re starting to do new negotiations or modifications of our agreements with the host nation. That these will be a part of future negotiation because it’s still unclear. We’ve dealt with this in terms of LGBT issues and some of the agreements with foreign nations with children and other things. This is just a new wrinkle to the U.S. law to help explain to the host nation in advance. I know agreements don’t come up every year, but there’s something that we should focus on as a policy issue.
Audience Member: I have a question. I am with the Department of Veterans Affairs. My question is outside of what we’ve been discussing, which is on the employment side. So at the Department of Veterans Affairs, our customers are veterans or families and representatives. An area we’ve been getting a number of questions about is allowing service animals and emotional support animals into VA facilities and any risks that may be associated with that. I would appreciate any feedback related to that because it is a question that we’ve been getting more and more inquiries about.
Mia Ives-Rublee: Yeah, that’s actually something that I know through the Disability Policy Group. We have been in contact with a representative with the VA who has been working on policies related to service animals, the clients and veterans that come into the VA, how to deal and interact with the service animals, and whether they are allowed in certain areas.
Katie Wolfe: Sure, as a matter of law, 504 conducted programs and services would apply. The DOJ’s position is that the 504 employees are consistent with the ADA. The ADA is very clear that service dogs can generally go anywhere members of the public can go. And we have a discussion in the regulatory guidance about hospitals and things like that. And typically, we point to the CDC guidelines and healthcare settings, which really restrict only in the most sterile environments. So, in the hospital setting, in a patient’s room, regular examination rooms, in waiting rooms, DOJ’s position under the ADA is that service animals would generally be allowed in all of those places.
As I’ve mentioned the ADA, DOJ’s regulations, don’t recognize emotional support animals. I will just note that often when I’m looking at a case involving an emotional support animal, that’s maybe a private lawsuit or something like that. As I read the pleadings or read the case, I think there is some confusion or messing up of terms. I’m looking at the legal definition of a service animal and often what I see in the pleadings is them describing a service animal, describing a service dog. And they’ll explain what the dog does for them, the person is calling it an emotional support animal because that’s the term that they learned when they got it. So, I think you do have to look closely at the facts sometimes, as opposed to just whether it’s labeled a comfort animal or emotional support animal. That might be relevant in this setting as well.
Unknown Speaker: So, going back to the discussion when we were talking about the effects on other employees. We talked about, for example, separate path of travel, etc. But I want to talk about phobias, because you had previously mentioned that if an individual has a diagnosed phobia, then they may be provided a reasonable accommodation for that. My question is, phobias are not generally something that medical practitioners, to my knowledge, would document and say you have been diagnosed with phobia “ABC.” So can we talk a little bit more about that?
Unknown Speaker: Just to be clear on the first point, if the person has a phobia, that is a disability. Even though after the ADAAA, the definition is much broader now, it doesn’t absolutely include everything. It has to, you know, interfere with a major life activity and look to the definition of disability. Having said that, special phobia does. So the term is special phobia, that’s opposed to generalized anxiety or social phobia. Special phobia is a particular thing like heights or dogs and that diagnosis appears in the DSM5, which is the diagnostic manual put out by the American Psychiatric Association. You might not get a general practitioner to diagnose you, but you should be able to get a psychiatrist or psychologist to diagnose you as having a phobia. Actually, specific phobia is usually described as a most common mental health disorder. So it’s something that people get diagnosed with. Does that make sense?
Audience Member: Hi. You mentioned that there was Struthers vs. Department of Navy where they wanted a support animal for anxiety, but the anxiety was triggered by crowds or around strangers. So, I want to ask for a little more in depth on that. Let’s say even if that employee on a daily basis is not encountering that in the workplace, maybe it’s happening on their commute to and from work, or maybe they are going to a training or conferences to get information for their job. How would that not apply? Is it the frequency of that occurring that would speak to whether that accommodation is necessary or not?
Unknown Speaker: That’s a very good question. And I think what would have to happen is that during your active process, you would have to consider the possibility of allowing the service animal in the situations where it’s required. So, this particular job apparently didn’t have much interaction at all with crowds or things like that. But certainly if the person had to go on a training or on travel, and if there’s some specific connection between the disability and those things, then I think that it would be perfectly legitimate to ask for the service animal to accompany on that.
Katie Wolfe: Can I add another point? I think also there’s the consideration of if it’s a service dog or service animal. I mean, I don’t necessarily agree with the outcome of that case, I haven’t read it. It sounds maybe badly pled or litigated. But the separation of a service dog and its handler for the 8 or 10 hours a day that the person would be at work or at school can be very detrimental to the dog’s ability to do its job in the other 12, 14 hours, whatever it is. So I would argue this is the way this individual has chosen to navigate through life. This very strict narrow construction of the nexus between the job duties or the disability related task and the job duties is a bit of an artificial one. You have to take into account that you need that connection between the dog and the user. So I would certainly be arguing that if that came to us.
Mia Ives-Rublee: I agree with that. Also, I was thinking about the commute part. The employer has to take that into consideration because on a daily basis, if that employee is on Metro, for example, you’re encountering strangers the whole trip to and from work. Also, does the Personal Assistant Services requirement play into any of this at all when you’re considering those types of things?
Unknown Speaker (maybe Dexter?): You’re absolutely right when it comes to commuting. Sometimes businesses and agencies get confused because people say that commuting is not a reason. There’s something that the people say a lot which gets them confused. But if the person needs to commute in order to get to work and the person needs the accommodation to do the commute, then it’s something that the employer might have to allow. I’m not personally familiar with this case, and I don’t know whether it makes a difference that this was not a service animal, or at least it wasn’t described as a service animal to me. It was an emotional support or comfort animal. And I don’t know whether that connection is required in that particular case. I just don’t know. Maybe forget about that case. The main point is that if the person can demonstrate they need it or it would be helpful, then that could be a situation in which the employer would be required to allow it.
And then you also want to take into consideration not only Title I and Title II, but also Title III. Especially if you’re talking about commuting, going into public accommodations, then you’re starting to butt into the other part and so coordinators need to start thinking about how are we going to deal with situations that an individual would be going into in those locations? And are they able to bring an emotional support animal into those locations? The employer and employee need to take those things into consideration because that can mean that you need to be a little more creative in where you’re meeting, where you’re hosting your meetings, that kind of thing. If you were going to a restaurant as a work group, your emotional support animal may be allowed in the workplace, but the restaurant does not have to allow that. You need to think about any external events. That’s a really good point.
Unknown Speaker (maybe Anupa?): I have a question and I want to hear from Tiffany on this — with DOL, is there a process you have to go through if you’re traveling that you have to give advanced notice when you have travel booked that you are bringing your service animal?
Tiffany Jolliff: I have not done official DOL travel with a service animal. I will say though, from having booked many, many, many flights on my own, I personally do not disclose that I have a service animal ahead of time and the reason why is because if I say that I do, then I want to make a change to my reservation later, they won’t let me do it online. So, I have to go through a bunch of extra hoops to get my reservations changed around and things like that. So, I actually don’t disclose ahead of time that I have a service animal. This might not be the best way to handle it, I’m going to go on the record and say that, however it’s more convenient for me in that I can actually make my changes and do what I need to do just like anybody else who is booking travel. So, as far plane travel and hotels and things like that, again, I don’t disclose, because in my mind my dog is allowed there anyway, so I don’t want to deal with all the questions. I’d rather just have them see it in their face. That’s me, though. There are some people that might want to do that differently.
Mia Ives-Rublee: I also don’t disclose when I’m going to a hotel because I don’t feel like having to deal with them on the phone. It’s a lot easier to be there in person. They see I’m in a wheelchair, it’s less questions. However, because of the new things that the airlines have been putting up, I have been disclosing to airlines that I have a service animal just so that I don’t deal with the major headache at the airport. So, I have a little bit of a different thing. I think each individual is going to be different on how they want to handle their travel in terms of whether they want to disclose or not. And I will work with that individual case by case to see how they want to handle their travel, whether they want to disclose beforehand.
This probably will get me to start disclosing more with air travel, the airlines are now talking about how many animals they can actually allow on flights and talking about weight restriction and things like that. Which has never been an issue in the past, but since more and more people are trying to bring their animals, airlines are starting to address it. It might actually sway me into the disclosure path moving forward.
Dexter Brooks: So, that brings us to the conclusion. I want to take this opportunity really thank the panel for the outstanding information. In particular, this is my thank you to Mia for putting this together, this was mostly her idea. Brett Sheats from EARN is now going to close our meetings.
Brett Sheats, National Project Director, Employer Assistance and Resource Network on Disability Inclusion: So, to Linda and Beth on the phone, Aaron, Katie, Mia, Tiffany, thank you so much. Normally, I would make a plug for EARN, but really in this area, JAN is really the go-to when it comes to this sort of stuff. AskJAN.org has so many great resources on this topic, so if you haven’t read the information on JAN about service animal issues, please go ahead and do that.
Thank you to the folks on the phone, those who are joining us remotely. We know there’s a lot of you all around the country that are on the list for the FEED group. Diana, what are we at now? About 800 people. This group didn’t exist a year and a half ago. And the folks here in the room, we really appreciate you coming. We hope that you could hear everything and we continue to try to be better and better about our remote technology.
One plea that I will make, if you have an area that you would like to see us explore in a future meeting, please email me. My email is in all of those RSVP emails you get, so look at those, it’s Bsheats@viscardicenter.org and you can Akinyemi Banjo as well. Let us know what you’re interested in. This is a topic we get questions about. I was excited about this issue and to hear these experts talk about it, and we can do this on other issues that you have an interest in or you get a lot of questions about. So, let us know and we’ll have a future meeting about it if we can. I think that’s it. Thanks to EEOC for having us, and if you have any questions, feel free to come up and ask me after the meeting.
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