Q: I have a new employee with a seizure disorder. She has requested the use of a service animal – a dog that is trained to detect and respond to her seizures. We’ve never had this request before and I’m reeling with all the implications of a dog on campus. Do I have to consider this request?
A: Yes, you must engage in an “interactive” dialogue with the employee to determine if the animal is a reasonable accommodation under the ADA.
Employees with a “qualified disability” are protected under Title I of the Americans with Disabilities Act (ADA) and are entitled to reasonable accommodations in the workplace. If an employee asks for an accommodation, the employer is then required by law to engage in an “interactive process” with the employee to determine what accommodations, if any, are required and reasonable to enable the employee to perform the “essential functions” of the job. The interactive process requires a back-and-forth dialogue between the employer and employee, generally requiring review of medical certification substantiating that the employee has a qualifying disability under the ADA and that the requested accommodation is needed for the employee to perform the essential functions of his/her job. The analysis for service animal requests is no different.
Because the employer gets to determine reasonableness, the key question is whether the employee can perform the essential functions of his/her job without the use of the service animal, or with an alternative accommodation (such as work schedule adjustment, frequent breaks, etc.). Note – during this interactive process an employer cannot ask to see the dog’s training credentials or certification, as many states do not even offer formal “certification” for the animal. Rather, under the ADA, only two inquiries are acceptable to ask the employee/physician when considering a request for use of a service animal: (1) whether the animal is required because of a disability (note, the ADA does not recognize emotional support or “comfort” animals whose only task is to provide a general sense of comfort, well-being, or companionship (unrelated to a qualified disability)); and (2) what work or task the animal has been trained to perform.
Once approved, the animal must be allowed to accompany the employee in all areas of the district’s facilities where employees may enter, including restrooms, eating areas, etc. Ultimately, the employee using the animal is considered the “handler,” and is responsible for all aspects of the dog’s care. This includes ensuring appropriate behavior while on premises and proper waste elimination and clean up, which should be documented in your memo to the employee. As such, we advise written documentation to the employee outlining expectations for the animal’s care and supervision while at school.
Finally, the regulations provide that a service animal’s approval and access to property can be removed in only two circumstances: (1) if the animal is out of control and the handler does not take effective action to control it (e.g., barking incessantly during instruction, eloping from handler, aggressive contact with others); or (2) if the animal is not housebroken. In the case of allergies, a school district should consider both individual’s needs and work cooperatively with both sides to find a solution. For instance, if a student in the employee’s classroom is allergic to the animal, the district may consider a selective seating arrangement to limit the student’s contact with the allergen or may consider a classroom transfer for the student.
Student Requests for Service Animals – In the event that a student requests the use of a service animal as a “related service” in his/her IEP or Section 504 plan, this request is likewise protected under Title II of the ADA. While student requests for service animals are typically construed more broadly by courts, the provisions related to supervision of the animal, removal of the dog, and allergies of other persons apply equally to a student-requested service animal. It is important to note, however, that a student request for a service animal is processed through the ARD Committee or the Section 504 Committee, as applicable.
Because the use of service animals involves federal disability laws, we recommend dialogue with your school district’s attorney to ensure that requests for use of service animals are properly processed and supervised while on your school property.