Animals in the workplace? It's complicated

The Americans with Disabilities Act requires an employer to make reasonable accommodations for employees with disabilities, unless the accommodation would cause an undue hardship to the operation of the business or present a direct threat to health and safety.

When an employer is asked by an employee to allow a service dog into the work space, the employer must analyze the request in the same manner as any other accommodation request, deciding first if the employee is disabled. If so, the interactive process begins: Does the employee have documentation regarding the need? What training is required for the animal to meet the need? What is the impact of the accommodation on the workplace?

Although service animals may be a reasonable accommodation for a disability, there are no guidelines in the ADA regarding the type of assistance a service animal must be able to give. Service dogs, once primarily involved with the visually impaired, now service the hearing impaired, provide advance warnings for low blood sugar and alert to oncoming seizures. They also may be used for therapeutic purposes, such as reducing anxiety and other psychological disorders.

The ADA also provides no guidance regarding what constitutes a "service animal." In Nevada, statutes define such animals as "an animal that has been trained to assist or accommodate a person with a disability."

Further, numerous organizations, such as the American Canine Organization, provide training and obedience certificates that an employer can reference when deciding if the requested accommodation is reasonable.

What if the animal is not a dog? What if the dog is not well disciplined? What if the service animal substantially interferes with the work that needs to be performed? The interactive process required by the ADA allows such issues to be considered in determining if the requested accommodation is reasonable. Wild or undomesticated animals may pose a threat to others, and therefore, would not be a reasonable accommodation.

For employers engaged in a business that is considered a "public accommodation," for example, a hotel, restaurant, barber shop, gas station or a movie theater, the business also must consider whether Nevada's requirements regarding customers' desires to bring an animal into the workplace also apply to their employees.

In Nevada, a business considered a public accommodation cannot refuse admittance or service to a person with a service animal or a person who is training a service animal; nor can they require proof that the animal is a service animal or a service animal in training.

However, they can ask the person to remove the animal if the animal is out of control or if it poses a direct threat to the health or safety of others. These requirements, though, do not trump competing restrictions. Therefore, when it is an employee who seeks to bring a service animal into the kitchen of the restaurant pursuant to an ADA accommodation request, the U.S. Food and Drug Administration's regulations apply, limiting where the animal can be.

When the request to bring an animal to work does not arise out of a disability request, an employer has no obligation to accommodate the employee. Indeed, the employer may have a legal obligation to reject the request. Many leases have restrictions regarding the presence of animals on the premises.

Also, some insurance liability policies may not cover injuries to employees or clients from visiting pets. City or state ordinances may restrict the presence of certain animals in certain locations, as may Occupational Safety and Health Administration regulations. Like in the restaurant situation, whether such lease restrictions, ordinances and regulations can override ADA requirements when a disability is involved depends on the balancing of the accommodation requested with the undue hardship it might cause.

And what about employees who have allergies or pet phobias? Depending on the severity of the allergy, a dog or cat allergy itself may be a disability, particularly in a pet-friendly workplace. Likewise, an employee with a pet phobia may be considered to have a disability subject to the protections of the ADA. The same ADA disability analysis applies to both pet allergies and pet phobias, as it does to the service animal request: does the employee have a physical or mental impairment that substantially limits one or more major life activities? Is there record of such an impairment, or is the employee "regarded" as having such an impairment? If yes, the employer must again engage in the interactive process required by the ADA.

When employees request competing and conflicting accommodations, the employer should turn to the "undue hardship" section of the ADA to determine if the request must be granted. What is the cost of the requested action to the employer? Is there significant difficulty in accommodating one request versus the other?

Employers are encouraged to ask the following when presented with a pet-related accommodation request:

1. Is the employee disabled or perceived as disabled?

2. Does the employee have documentation regarding the need?

3. What training is required for the animal to meet the need?

4. Does the presence of the service animal substantially interfere with the work that needs to be performed?

5. Are lease or insurance restrictions in place that make it impossible to accommodate an employee's request for a service animal?

6. Are there other ordinances or regulations that prohibit the accommodation requested?

7. Does the request for a service animal conflict with other employees' allergies and animal phobias?

As always, when a request is made that is not covered by established policies, consider amending the policies to address the rules, so that employees know they are being applied equitably. Consult with your human resources and labor relations attorneys to construct or review your policy to make sure your workplace is appropriately pet-friendly and legally compliant.

Ann Morgan is the managing partner of Fennemore Craig Jones Vargas Law Firm in Reno. Contact her at amorgan@fclaw.com.