*This article is the second and final of a series on accommodation requests for service animals in the workplace. Last month, Adams and Reese attorney Brent Siler discussed a recent appeals court decision that offered court guidance on this trending topic.
The concept of service animals in the workplace has been around for quite some time, but many managers, especially those at smaller companies, may not have yet had to address it.
With regard to employees, you can treat a request for a service animal the same as any other accommodation request, meaning you are obligated to engage in an interactive process to identify reasonable accommodations for the employee that will allow the employee to fulfill the essential functions of his or her position.
Here are some best practices that you should consider implementing in regards to service animal accommodation requests:
Before requests arise:
- Educate: Establish a policy and conduct training for front line managers. I know every article ever written includes this advice, but, like any other employment issue, you must be able to identify the issue to protect yourself. A manager might not know that an employee who vaguely refers to needing a dog or other animal at work because of stress or anxiety is really making a request for accommodation that should not just be dismissed out of hand.
When a request is made:
- Always engage in the interactive process: The interactive process is mandatory. When a request for accommodation is made, you have to engage in a collaborative, interactive process to explore possible accommodations. Discuss alternative solutions that address both the employee's needs and any potential concerns about safety or health risks.
- Remember the point: The point of the interactive process is to be a means to identify possible accommodations. You are not required to be successful. The process itself is the point.
- Documentation: Your process is only as good as what you can prove. I tell my clients to think of the interactive process in the same way they think of the write ups that occur before a termination. The goal of the process is to identify a workable accommodation, but you should always remember that things may go south. Respond promptly in writing, describe why accommodations may not work, reference the fact you researched alternatives, consult with medical providers and legal counsel, offer alternatives, and offer to continue the conversation. Document every step of the process.
- Suggest alternatives: It may not always be possible but try to suggest an alternative. You may also want to consider a trial period for the proposed accommodation.
- Seek advice or counsel: It is important to get counsel involved any time you get into an accommodation issue, especially when you are in a position of denying a request.
Additional tips:
- Focus on facts, not speculation: One goal of the American Disabilities Act (ADA) is to keep employers from acting based on their misunderstandings of what a disabled person can or cannot do. While you don’t necessarily have to wait for something bad to happen, you do need to have more than just the thought that something bad could happen. If you are dealing with a potential threat to health or safety, conduct an individualized inquiry into the nature, duration, and severity of the risk, the probability that injury will actually occur, and whether reasonable measures could mitigate the risk. Generally, the more severe the risk, the more leeway you will have to avoid it.
- Don’t forget the essential functions: The goal of the interactive process is to identify accommodations that would allow the employee to perform the essential functions of the position. If you do not have a current job description that clearly and accurately describes what those are, you will have a much harder time in court trying to prove that the proposed accommodation would or would not work.
- Determine the limitations you are dealing with: The idea is to identify options that will allow an employee to overcome the limitations they have to perform the essential functions of their position. It is hard to get there if you do not know what the employee’s limitations are. Just like with any other accommodation, you have the right to get information from the employee and their medical provider. It helps you assess the reasonableness of the accommodation and your communications with the medical provider is additional documentation to show good faith participation in the interactive process.
- Be flexible and adaptable: Remember that accommodation is by definition a request to change the rules or to make an exception to a policy. You must stay flexible and remember that there may not be a one-size-fits-all solution.
About Our Author
Brent Siler is a member of the Adams and Reese Litigation Practice Group and Labor and Employment Team. He is a Partner in the Memphis office and has more than 20 years practicing at top AmLaw 200 firms across the southeastern United States. Brent drafts employment, contractor, and vendor agreements, as well as non-competition, non-solicitation, non-disclosure, confidentiality, and other agreements, policies, handbooks, and training materials. He is asked by clients, peers, business groups, and bar associations to provide training on employment-related laws and is also a frequent speaker, presenter, and author on labor and employment issues. He defends employers in discrimination, harassment, retaliation, OSHA, non-compete, and employee benefits disputes, as well as whistleblower, wage and hour, ERISA, defamation, workers’ compensation, and other employment-related litigation. He is licensed in Tennessee, Mississippi, and the federal courts of Arkansas. He is a Tennessee Supreme Court Rule 31 listed General Civil Mediator, mediating employment and commercial litigation.