Comfort Pets, Scent-Free Zones & Interpreters

1. Comfort Pets, Scent-Free Zones & Interpreters Handling Difficult Accommodation Requests to Serve Your Employees and Protect Your Organization

2. Sara G. McGrane • (612) 373-8511 • smcgrane@felhaber.com

3. Outline • Service animals and comfort pets • Public accommodation • Employment • Scent-free zones • Interpreters

4. Service Animals and Comfort Pets • Governed by the Americans with Disabilities Act (ADA) • Title I – Employment • Title III – Public Accommodation • Minnesota has similar state law

5. Title III: Public Accommodations • General Rule • Individuals with disabilities under the ADA (or MN law) may use service animals in places of public accommodation. • What is a public accommodation? • Private entity that affects commerce. • Hospitals, banks, office buildings, restaurants, schools.

6. Title III: Public Accommodations • Title III applies only to service animals. • There are no laws allowing individuals to use comfort pets in places of public accommodation.

7. Service Animals and Comfort Pets • Definitions • Service Animal: Dog that is trained to do work or perform tasks for the benefit of an individual with a disability. 28 CFR § 36.104. • Comfort Pet / Emotional Support Pet: No formal definition. Generally defined as any animal which provides comfort, safety, or emotional support to an individual.

8. Title III: Public Accommodations • Other Animals • Only other allowed service animal is miniature horse. • Separate ADA regulations permit mini horses if specially trained to assist with certain tasks. • Courts have denied arguments that other trained animals are service animals. • Rose v. Springfield-Green Cty. Health Dep’t: Trained monkey is not a service animal.

9. Title III: Public Accommodations • “Do work or perform tasks” • Dog must be specifically trained to assist with a specific function. • Ex: guide blind individual or assist in event of seizure.

10. Title III: Public Accommodations • Training • Dog can be trained by individual or by professional. • Do not need to be professionally trained. • No regulations defining when dog qualifies as service dog. • Do not need certificate.

11. Title III: Public Accommodations • Business Obligations • Allow service animals to accompany individuals wherever the individual is generally allowed to go. • Must reasonably modify policies, practices, or procedures to allow disabled individual to use service animal.

12. Title III: Public Accommodations • Fundamental alteration • Businesses need not permit service animals if “doing so would result in a fundamental alteration or jeopardize the safe operation of the public accommodation.”

13. Title III: Public Accommodations • Proving a fundamental alteration is a high bar • Examples • Patient allowed to use service dog during stay at psychiatric ward. • Patron allowed to use service dog with history of barking at music concert. • Patron allowed to use service dog on public brewery tour.

14. Title III: Public Accommodations • Direct threat defense • Must be based on actual risk, not generalized speculation or fear. • Example: Roe v. Providence Health System-Oregon. • Hospital established direct threat defense because dog’s putrid odor, size, and possible infection caused patient transfers, allergic reactions, and made it difficult for staff to assist patient.

15. Title III: Public Accommodations • Allergies and fear are not excuses • “Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.” • https://www.ada.gov/service_animals_2010.htm

16. Title III: Public Accommodations • Handler’s Obligations • Handler is at all times responsible for the service animal. • Service animal must be “under control.” • Must be on leash or otherwise under control by voice or signal.

17. Title III: Public Accommodations • Businesses canask: • If the animal is a service animal. • Whether the service animal is required because of a disability. • What tasks it is trained to perform.

18. Title III: Public Accommodations • Businesses cannot: • Ask about the individual’s disability. • Require medical documentation. • Require service animal certification. • Ask the dog to demonstrate the ability to perform specified task.

19. Title III: Public Accommodations • What to do if animal is being disruptive • “A person with a disability cannot be asked to remove his service animal from the premises unless: • (1) the dog is out of control and the handler does not take effective action to control it or • (2) the dog is not housebroken. • When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.” https://www.ada.gov/service_animals_2010.htm

20. MHRA - Service Animals • Same definition and laws as ADA. • Also applies to entities not governed by ADA. • MHRAdefines a Place of Public Accommodation as “a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.” (Minn. Stat. 363A.03 Subd. 34).

21. ADA Title I: Pets at Work • General Rule • ADA Title I does not itself allow (or prohibit) individuals from bringing service animals or comfort pets to work. • ADA comes into play only if individual seeking service animal or comfort pet is an individual with a disability under the ADA. • If so, then the individual may request that her or his employer allow a service animal or pet as a “reasonable accommodation.”

22. Title I: ADA Overview • Employment discrimination is prohibited against "qualified individuals with disabilities." • “A qualified individual with a disability” is a person who meets the legitimate skill, experience, education, or other requirements of a position that he or she holds or seeks and who can perform the "essential functions" of the position with or without reasonable accommodation.

23. What Is Reasonable Accommodation? • Modification or adjustment to duties of position, employment practices, or working environment.

24. Interactive Process • If an employee requests an employer to allow a comfort pet or service animal to accompany the employee at work, the employer must engage in an interactive process with the employee to determine whether the accommodation is reasonable.

25. Interactive Process • Determine essential job functions; • Understand the employee’s functional limitations; • Listen to the employee, considering the employee’s suggestions; • Get outside expertise, if necessary; • Identify potential accommodations and assess effectiveness; • Develop an accommodation plan, involving employee; • Continue to check in, modifying as appropriate; and • Document all steps.

26. Service Animal as Reasonable Accommodation • Service Animal • In most circumstances, use of a service animal is a reasonable accommodation. • However, service animal must help perform essential job functions, not just provide general comfort.

27. Service Animal as Reasonable Accommodation • Clark v. School Dist. Five of Lexington and Richland Counties, 247 F. Supp.3d 734 (D. S.C. 2017). • EE was a special needs teacher. • Suffered from PTSD and agoraphobia and requested service dog. • School district denied request: worried about student allergies, distraction, and fear.

28. Service Animal as Reasonable Accommodation • Clark v. School Dist. Five of Lexington and Richland Counties, 247 F. Supp.3d 734 (D. S.C. 2017). • Parties disputed whether service dog was necessary to perform essential job functions. • Court denied the employer summary judgment because EE sufficiently alleged that the service animal was necessary to perform job functions and no other accommodation would suffice.

29. Service Animal as Reasonable Accommodation • Schultz v. Alticore/Amway Corp. 177 F. Supp. 2d 674 (W.D. Mich. 2001). • EE worked as a designer for employer. • Main duties included developing drawings of company equipment. • EE was deaf and suffered from mobility issues. • EE requested service animal at work.

30. Service Animal as Reasonable Accommodation • Schultz v. Alticore/Amway Corp. 177 F. Supp. 2d 674 (W.D. Mich. 2001). • However, employee’s essential job functions did not include tasks that required use of service animal. • Employee rarely had to interact with co-workers, and design work was not substantially impacted by mobility issues. • Thus, court upheld employer’s refusal to permit service animal.

31. Comfort Pet as Reasonable Accommodation • Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018) • EE worked the night shift as dispatcher in emergency operations center, a small bulletproof room with multiple workstations. • EE sought to bring dog, Mr. B., to work to help alleviate EE’s panic attacks. EE submitted letter in support from doctor. • Defendant allowed EE to bring dog on “trial basis.”

32. Comfort Pet as Reasonable Accommodation • Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018) • Several employees complained of allergies to Mr. B. • Plaintiff also left operations center to walk Mr. B, leaving only one inexperienced dispatcher to cover.

33. Comfort Pet as Reasonable Accommodation • Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018) • Defendant denied request to continue to allow Mr. B at work. Offered two alternatives: • EE work day shift, where there was more coverage in case EE needed to take a break. • EE bring a hypoallergenic dog to alleviate others’ allergies. • EE refused.

34. Comfort Pet as Reasonable Accommodation • Maubach v. City of Fairfax, 2018 WL 2018552 (E.D. Va. Apr. 30, 2018) • Court granted defendant summary judgment. • EE failed to engage in “interactive process” in good faith by refusing reasonable alternatives. • Mr. B imposed an undue hardship on defendant. There were no reasonable ways to minimize co-workers’ allergies, and building a separate dispatch space was prohibitively expensive.

35. Don’t Be Fooled Individuals can obtain certifications for emotional support animals. This does not mean that the emotional support animal is a service animal, and does not require the employer to provide an accommodation.

36. Practical Tips • After employee requests service animal or comfort pet, engage in thorough interactive process. • Ask about employee’s disability, work restrictions, and how animal helps perform job. • Is animal housebroken and vaccinated? • Discuss reasonable alternatives to allowing animal at work.

37. Scent-Free Zones Under the ADA • Allergy or sensitivity to fragrance can be a disability under the ADA if it substantially affects a major life activity. • However, employer need only provide a reasonable accommodation. • Employer does not need to provide any accommodation that constitutes an “undue hardship.”

38. Scent-Free Zones Under the ADA • Cramer v. Allina Health Sys., 2003 WL 22952381 (Minn. Ct. App. 2003): • EE worked as pharmacy technician. • Following water leak and mold damage in work building, EE developed sensitivity to  mold, perfume, cleaning alcohol, and dust. • EE took 3-month leave of absence. Doctor approved her to return to work, recommended no exposure to substances, but did not find her permanently disabled. • EE requested defendant prevent any contact with substances she was sensitive to.

39. Scent-Free Zones Under the ADA • Cramer v. Allina Health Sys., 2003 WL 22952381 (Minn. Ct. App. 2003): • Due to nature of hospital work, defendant was unable to fully accommodate EE’s requested restrictions. • Defendant terminated EE, and EE declined Defendant’s offer to work at different facility. • EE sued under MHRA for failure to accommodate. • After being terminated, EE opened a fitness center and began working full time. EE testified she controlled symptoms by “avoiding contact with certain chemicals and by taking medication.”

40. Scent-Free Zones Under the ADA • Cramer v. Allina Health Sys., 2003 WL 22952381 (Minn. Ct. App. 2003): • District court granted defendant summary judgment, finding that EE did not suffer from a permanent or long-term disability. • Court of appeals affirmed, finding no evidence that EE suffered from long-term disability or that defendant “regarded” EE as having a disability.

41. Scent-Free Zones Under the ADA • Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999). • EE suffered from severe sinus attacks that were triggered by common workplace irritants such as heavy perfumes, smoke, nail polish, glue and adhesives. • The employer “made great efforts” to accommodate the employee, prohibiting the use of nail polish in his department, creating a work station for him in a room with better ventilation and arranging a system whereby he could sign off his phone if he was sensing an irritant and wait for the problem to be remedied by his supervisor.

42. Scent-Free Zones Under the ADA • Buckles v. First Data Resources, Inc., 176 F.3d 1098, 1101 (8th Cir. 1999). • The court held that the employer’s accommodations were sufficient to meet the employer’s obligations under the ADA. • Furthermore, the court refused to require the employer to go so far as to provide the employee with an irritant-free work environment.

43. Scent-Free Zones Under the ADA • Kaufman v. GMAC Mortgage, 2006 WL 1371185 (3d Cir. 2007). • EE had allergic rhinitis and asthma exacerbated by exposure to strong orders and perfumes. • EE asserted the zero-tolerance policy adopted by the defendant and the numerous e-mails to co-workers about the policy did not constitute a reasonable accommodation. • EE said defendant’s enforcement of the policy was “half hearted” and asked to work from home.

44. Scent-Free Zones Under the ADA • Kaufmann v. GMAC Mortgage, 2006 WL 1371185 (3d Cir. 2007). • The court held that the employer reasonably accommodated employee’s disability of being allergic to various scents by instituting a perfume-free work place policy, providing to the employee a fan and a new air filter, and changing old air filters throughout the work place. • The court noted that the employer need not viciously enforce the perfume-free policy in order to comply with the ADA: “It is unreasonable to expect GMAC could have prevented all violations of its perfume policy, but when employees were suspected of wearing scented products, [the supervisor] responded appropriately, reminding employees, individually and collectively, of the importance of keeping a perfume-free environment.”

45. Scent-Free Zones Under the ADA • McBride v. City of Detroit, 2008 WL 5062890 (E.D. Mich. Nov. 28, 2008). • EE requested that the employer (city) institute a “scent-free” policy to accommodate her chemical sensitivity. • The City asserted that implementing a scent-free policy would impose an undue hardship, and, therefore, it was an unreasonable request for accommodation.

46. Scent-Free Zones Under the ADA • McBride v. City of Detroit, 2008 WL 5062890 (E.D. Mich. Nov. 28, 2008). • The court held that “a scent-free policy for the workplace is an unreasonable accommodation because it would require an undue hardship.” • However, the record revealed that the EE was not seeking a “scent-free” policy. • Instead, found that plaintiff was seeking a “perfume-free” policy because during her employment plaintiff provided the city with a sample policy from another city department.

47. Scent-Free Zones Under the ADA • McBride v. City of Detroit, 2008 WL 5062890 (E.D. Mich. Nov. 28, 2008). • The sample policy stated that “[m]ild scents may be worn in moderation, but strong or offensive scents that become detrimental to the work unit will not be tolerated.” • According to the court, “[u]nlike the policies in Kaufman . . . this type of policy does not require a completely scent-free environment nor does it address the public or those outside a department.” • Thus, the court held that the city was unreasonable in failing to accommodate her by enacting a scent-free policy.

48. Scent-Free Zones Under the ADA • McDonald v. Potter, 2007 WL 2300332 (E.D. Tenn. Aug. 7, 2007), aff’d, (6th Cir. 2008). • EE asserted that she was disabled because of chemical sensitivities, which caused migraine headaches. • EE proposed the following accommodations: • (1) Creating a fragrance-free environment; or • (2) Defendant actually enforcing the existing fragrance policy, including extending discipline to offenders. • EE, a federal EE, brought suit under the Rehabilitation Act.

49. Scent-Free Zones Under the ADA • McDonald v. Potter, 2007 WL 2300332 (E.D. Tenn. Aug. 7, 2007), aff’d, (6th Cir. 2008). • The court found that EE was not disabled. • The court concluded that neither the scent-free policy nor a more “strictly enforced” perfume-free environment would be objectively reasonable under the circumstances.

50. Scent-Free Zones Under the ADA • Heaser v. AllianceOne Receivables Management, Inc., 2009 WL 205209 (D. Minn. Jan. 27, 2009). • EE hired as a debt collector and the next day EE announced that she suffered from illnesses triggered by exposure to certain chemicals and fragrances. • Defendant implemented a voluntary scent-free policy. • After 26 days on the job, EE took a 30-day medical leave from which she did not return.