Human Resources: Employer''s Bar On Assistance Animal At Work Upheld

An employer that refused to let a worker with a hearing impairment bring an assistance animal to work after others complained about the dog did not violate the ADA, an appeals court decided, noting that the worker did not use the dog to perform any essential job function.

Ed Eames, president of the International Association of Assistance Dog Partners, protested the decision, saying it "goes against all other court cases I´m aware of," but criticized the current Title III definition of service animals as too broad.

HR´s call upheld
Michael Schultz, who drew detailed designs for equipment and facilities layouts for Alticor/Amway Corp., got an assistance animal because of a hearing loss. During the Christmas season, he asked for and received permission to bring his hearing dog to work.

Co-workers complained that the dog was disrupting their work on its first day at the office, according to Edward Bardelli, an attorney with the law firm of Warner, Norcross & Judd in Grand Rapids, Mich. However, Schultz said his dog, Ruby, "acted perfectly" and was aware of no complaints from co-workers.

At a meeting with two employees from Alticor´s HR department, Schultz admitted he did not need the dog to perform any of his job´s essential duties. "The dog was with me as a training exercise in case I needed her after work" to prepare for a trip Schultz was planning to India, he said. In addition, he wanted her on the job "in case I needed her after work and did not have time to get her."

Schultz was informed that he no longer would be permitted to bring the dog to work and he sued, maintaining Alticor violated the ADA. "People with disabilities should have the right to have a service animal whenever they need them," he remarked.

The district court dismissed his claim, stating, "It is difficult for this court to imagine what the aid of a service dog would provide Schultz when performing the various duties of his job." Schultz appealed the decision, but the appeals court agreed with the district court´s reasoning and ruled for Alticor (Schultz v. Alticor/Amway Corp., 2002 WL 1787981 (6th Cir.)).

Saying the court´s ruling proves that, "bad cases make bad law," Eames cited numerous decisions and settlements ruling for employees. In one, Christine Branson, a staff physician, sued the Lakeside Veteran´s Hospital in Chicago for not allowing her to bring a service animal to work.

The hospital proposed that she use a power chair or a staff assistant to get around the facility, but the court ordered it to allow her to use her service animal. "The issue was never whether she needed the dog to help her perform the essential functions of the job," but was whether the hospital failed to accommodate her by excluding the dog, Eames stated. A jury concluded it unlawfully denied a reasonable accommodation and awarded Branson $300,000 (Branson v. West, 1999 WL 1186420 (N.D. Ill.)), he said.

Rights and responsibilities
The rights of an employee requesting the use of a service animal depend on the person fulfilling his or her responsibilities as an assistance animal handler, commented Suzanne Whalen, president of the National Association of Guide Dog Users.

"If a service animal is disruptive and is growling, barking or lunging at people, or is not clean and has an odor and is detrimental to the business, entities are permitted to ask someone to remove the service animal. But the business better be sure it has a good reason, and is not just saying that people might be afraid of the animal or might have an allergy," Whalen remarked. If an employee is severely allergic to a dog, transfer should be considered as a possible reasonable accommodation, she noted. Nevertheless, she warned that, "allergy often is brought up as an excuse."

Eames agreed, saying he lived in New York City before and after the ADA was passed and that the entire time he was there, cab drivers regularly would not pick him up and, after he filed a complaint, claim they were allergic to dogs. However, if someone at work has documented allergies, reasonable accommodations are possible such as moving the desk of the person with the allergy far away from the person using an assistance animal and having a direct line between the two employees so the person with the allergy can be alerted when the handler of an assistance animal is headed his or her way, he noted.

People handling assistance animals do have a responsibility to groom their animals and correct them when they misbehave, Whalen emphasized. For example, if someone allows his or her assistance animal to go to others´ desks and grab their lunches, the animal is disruptive and the person loses the right to have it present, she said.

But if the assistance animal is not disrupting the workplace, the person with a disability has a right for it to be present, even if some co-workers just do not like or are afraid of dogs in general, Whalen said.

Different assistance animals
Whalen noted that assistance animals help a variety of people with disabilities and include:

guide dogs, which perform specific tasks for people with severe visual disabilities;

hearing dogs, aiding individuals with severe hearing disabilities; and

service animals, which typically help persons who have mobility or manual disabilities.

In addition, some dogs are trained to respond to help persons after they have seizures. Some people swear their dogs also alert them when seizures are about to occur, Whalen added, but she said there is a debate about whether dogs really can be trained to do this or whether some have a natural gift.

Some dogs can sense when people are on the verge of having panic attacks, according to Michele Pettit of Croton-on-Hudson, N.Y., who said her companion dog, Mocha, has this ability. Mocha whines to alert Pettit that she is about to have a panic attack, giving Pettit time to take medication.

However, Whalen distinguished companion animals from assistance animals, questioning whether dogs really can be trained to perform any specific tasks to help persons with psychiatric disabilities. "What can a dog be trained to do - give kisses?" Whalen acknowledged that many dogs are naturally affectionate and their presence can make people happier and even reduce blood pressure, but said a dog should perform particular tasks to be called an assistance animal.

Nevertheless, the EEOC and the Justice Department have not yet clarified what qualifies as an assistance animal, she stated. As a result, "there is nothing to prevent someone from taking an iguana into a restaurant and saying, ´this is an assistance animal.´" Public accommodations are not supposed to ask for any documentation that an animal is a certified assistance animal, according to the Justice Department.

Whalen expressed concern that there is considerable room for abuse of the system. A nondisabled person could call a pet an assistance animal just so he or she could go anywhere with it, she said, noting that doctors increasingly are prescribing companion pets for people claiming to have psychiatric disabilities.

Eames agreed that a dog that simply makes someone feel better by its presence should not be considered an assistance animal. Nevertheless, he said that a psychological service dog should be considered an assistance animal if it performs specific tasks such as alerting its master about a panic attack so he or she can take medication or pull over to the side of the road while driving.

He also noted that there are assistance animals that can perform tasks for individuals with Parkinson´s disease. When someone freezes in place because of the condition, the animal taps on the person´s leg to allow him or her to regain movement.

Specific tasks
Whalen contrasted companion animals with guide dogs, listing the numerous tasks that Caddo, her guide dog, performs, including:

stopping for ramps, curbs and steps;

maintaining a safe distance from traffic;

finding elevators;

locating exits and entrances; and

finding bus stops.

Caddo waits and listens to her command at traffic lights, Whalen said. When she hears that traffic before her has stopped, she moves forward. But Caddo helps keep her a safe distance from cars turning on red or running red lights by stopping, swerving or speeding up. Although some people are trying to train horses to be guide animals, Whalen expressed extreme skepticism about whether horses are effective in this role, saying she knows of only one guide horse that has been placed with anyone.

Before she used a guide dog, Whalen was injured after falling into a manhole. As a result of the accident, she now uses a power wheelchair for longer distances, and Caddo, a shepherd, helps her steer around obstacles.

Whalen said Caddo was not really a service animal because he does not perform numerous tasks service animals usually perform such as:

pulling wheelchairs;

turning lights on and off;

retrieving objects such as bringing a soda or food from a refrigerator;

opening doors;

pushing buttons on elevators; and

helping someone who is prone or who has fallen out of a wheelchair back into the wheelchair.

In addition to service dogs, there are service monkeys, she noted.

Typical tasks for hearing dogs include:

alerting individuals about various sounds such as alarms, phones or a crying baby; and

taking the person to the source of some sounds such as a phone or crying baby or to a safe place in an emergency.

Disability etiquette
Nondisabled people should not assume people with assistance animals need help without asking first. If a person with a disability declines help, no matter how lost the person looks, leave him or her alone, advised Whalen. If the person with a disability says they do need help, the nondisabled person should ask what is the best way they could provide assistance, Whalen added. A person who uses a guide dog might want the nondisabled person to walk behind and say either "left" or "right," or may prefer for the nondisabled person to walk ahead of the dog and let it and the person with a disability follow.

Someone offering help needs to obey the directions provided by a person with a disability. "You would be amazed at the number of people who don´t" follow instructions, she said. Typical instructions might include not specifying right and left for every obstacle, only major ones, and not moving obstacles out of the way when that is the assistance animal´s job.

"Don´t talk to a working dog without asking for the owner´s permission," she said. "Don´t say the dog´s name or make calling noises or say, ´Caddo, this way´" when leading, instead of talking directly to the person with a disability, Whalen advised.

The assistance animal should not be fed. "The last thing I want my dog to learn is how to scavenge." In addition, the dog should not be touched without the owner´s permission.

"Some dogs are easily excitable," and distracted from their work if nondisabled people treat them like pets, Whalen said, noting that some handlers prefer for their dogs not to be patted while they are working. Whalen said she allows people to pat her dog when it is at rest because it is not as excitable as some dogs, but never when Caddo is in motion. "The key is to ask for permission," she emphasized.

Unlawful denial of entry
In some instances, handlers of assistance dogs do not exercise their responsibilities and consequently waive their rights, Whalen stated. Nevertheless, she said there still are many employers and businesses that unlawfully deny access to worksites and places open to the public.

"We deal with this all the time," she said. "It is amazing that in the year 2002, we still have to deal with this," she added, noting that guide dogs have been used in this country since 1929.

Whalen recalled when she worked as a school teacher being asked to use her guide dog only in her classroom because parents visiting the school with infants and toddlers were afraid their children would be hurt by her dog. She refused because "my dog had more right to be in the school than infants and toddlers who were not of school age. The toddlers were safer when I was using my dog than having me trip over them" anyway, Whalen said.

She mentioned one man who works for the federal government and has contended with co-workers who do not like dogs.

"That is too bad. It helps him get from point A to point B because he is blind. That´s just life in the big city," Whalen stated.

Revision of regulations sought
The International Association of Assistance Dog Partners has approached the Justice Department, calling for it to revise the Title III regulations´ definition of "service animal," Eames said.

"We hope the language will be changed in the regulations so that things that are absolutely crazy are taken out such as the ´minimal protection´ language," he remarked. The Title III regulations define service animals as "any guide dog, signal dog or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair or fetching dropped items."

In addition to leaving the door open for virtually anyone to claim nearly any animal is an assistance animal, Eames said the "minimal protection" language is potentially dangerous. Traditionally, assistance animals are not trained to provide protection to people with disabilities, which could lead to the animals being unnecessarily aggressive in public, he remarked. While at least one outfit is training assistance animals to protect persons who have been assaulted and who now have psychiatric disabilities, Eames said this was not the usual role for the animals. The classification of dogs in this role frankly "scares the hell out of us," he said.

When the regulations were originally drafted, the International Association of Assistance Dog Partners did not yet exist and an offer by other assistance dog associations were "sloughed off" by the Justice Department, he said. As drafted, the definition reflects the role of monkeys trained to work with quadriplegics more than anything else, he said. "More money is spent on the monkeys and few work," he added.

Instead, the definition should be revised to provide that service animals are trained to do tasks to assist persons with disabilities, he concluded.