Published in the New Hampshire Business Review
By: Shima Umetani Walker
A recent news story reported a woman brought a baby kangaroo into a local McDonald’s in Wisconsin, claiming, with a letter from her doctor, that the kangaroo was a “service animal” to help her cope with emotional distress. Another McDonald’s customer called the police, and the woman was asked to leave.
That type of situation poses some important questions for New Hampshire businesses with regard to service animals. Do you know what actually qualifies as a service animal under the law and what you should do when a customer or client brings in a service animal?
Similarly, how should you, as an employer, respond to a request from an employee with a disability to bring a service animal into the workplace? Here is an overview of what to do when a business finds itself in a murky situation involving a service animal.
A business that is generally open to the public wears two hats – one as a business providing services to the general public and the other as an employer. A business open to the public falls into one of the 12 categories listed in the Americans with Disabilities Act and must comply with its “public accommodations” provisions.
The public accommodations provisions set out rules that apply to covered entities in relation to their clients or customers with disabilities, not to their employees. Generally speaking, covered entities are almost always required to allow a service animal on their premises.
Under the regulation, the acceptable species of “service animals” are limited to “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.” In addition, covered entities must allow a miniature horse by a customer or client with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the customer or client with a disability.
A covered entity may not ask the customer or client with a service animal for paperwork supporting his or her need for the service animal. Nor may a covered entity ask the customer or client with a service animal what his or her disability is.
This automatic requirement to allow a service animal does not apply to a covered entity in relation to its employees with disabilities.
When an employee requests that a service animal be allowed to accompany him or her in the workplace, the employer must respond to the request in accordance with the employment provisions of the ADA, which are enforced by the Equal Employment Opportunity Commission.
Those provisions require that an employer with 15 or more employees provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless doing so would cause undue hardship.
Once an employee with a disability makes a request for reasonable accommodation, the employer and the employee should discuss what the appropriate reasonable accommodation might be for that particular employee. This so-called “interactive process” is required under the ADA.
The goal is to determine the appropriate reasonable accommodation for that particular employee so he or she can perform the essential functions of the position.
The EEOC’s guidance explains that accommodation is “reasonable” if it appears to be feasible or plausible. The EEOC’s guidance also states that an employer may ask the employee for reasonable documentation describing the employee’s disability and functional limitations if the disability and/or the need for accommodation is not clear.
There are certain exceptions to an employer’s obligation to provide reasonable accommodation. The first exception is when a requested accommodation would create an undue hardship, which means significant difficulty or expense, focusing on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.
Another exception is when an employee or a requested accommodation would pose a direct threat to the health or safety of the employee, other employees or the public.
Despite these exceptions, employers are reminded that they are required to engage in an interactive process with an employee with a disability requesting an accommodation and make a good-faith effort to find an effective solution to help the employee perform his or her job.
While the employment provisions of the ADA apply to an employer with 15 or more employees, smaller businesses should be aware that a state law (RSA 354-A) prohibits employment discrimination on the basis of disability as well as other protected characteristics and applies to an employer with six or more employees.
Shima Umetani Walker, an attorney in the Employment Law Practice Group of McLane Law Firm, can be reached at 603-628-1249 or [email protected]