When Should Service Dogs Come to Work?

​On June 30, the U.S. Equal Employment Opportunity Commission (EEOC) sued arts-and-crafts retailer Hobby Lobby for refusing to reasonably accommodate and then firing an employee with multiple mental health conditions who requested the use of a service dog.

The EEOC alleges Hobby Lobby violated the Americans with Disabilities Act (ADA) and is seeking back pay, compensatory and punitive damages, and reinstatement for the employee.

"Millions of Americans are successful, productive workers despite having mental health conditions that can be debilitating," Andrea G. Baran, regional attorney for the EEOC's St. Louis District Office, said in a statement. "The ADA ensures equal employment opportunity for these individuals, including those who are assisted by service animals."

On Oct. 3, 2020, a part-time clerk at a Hobby Lobby store in Olathe, Kan., advised her manager that she needed to bring her fully trained service dog to work to alleviate her symptoms of post-traumatic stress disorder, anxiety and depression, according to the lawsuit.

After submitting a letter from her mental health provider, the worker met with Hobby Lobby's HR representative to discuss her request. But the company concluded that the dog would present a safety concern because a colleague or customer might be allergic to the dog or trip over it, or the animal might break something.

Hobby Lobby permits customers to bring service dogs and other dogs into the Olathe store. But managers were unwilling to allow the employee's service dog in the store to assess whether their safety concerns were legitimate.

Two weeks later, the employee returned to work with her service dog and renewed her request for reasonable accommodation. The store manager sent her home, reinforcing that she could not have her service dog at work.

The manager also told her that if she could not work without her service dog, it would be considered job abandonment. The employee did not return to work, and Hobby Lobby terminated her employment, according to the lawsuit.

How Does the ADA Define Service Animals?

Service animals help individuals with disabilities live and work independently. Under the ADA, a service animal is a dog that has been trained to perform tasks for an individual with a disability such as:

• Vision problems.
  
• Mobility impairments.
• Seizure disorders.
• Mental health conditions.

"Employers must not reject service animals, or any other reasonable accommodation, based on stereotypes or assumptions regarding the safety or effectiveness of the accommodation," David Davis, acting director of the EEOC's St Louis District Office, said in a statement.

Emotional service, therapy, comfort or companion animals are not considered service animals under the ADA's Title III public accommodation provisions. However:

• A dog trained to sense an impending anxiety attack and take a specific action to help avoid or reduce its effect would qualify as a service animal.
• Under Title I of the ADA, an emotional support animal could conceivably be an accommodation for an employee in the workplace, such as for a veteran with post-traumatic stress disorder.

Peter Spanos, an attorney with law firm Taylor English Duma LLP in Atlanta, said that requests for accommodation via emotional support animals were once rare but have become increasingly common.

But the lack of clear guidance and precedents, as well as the open-ended nature of obligations under Title I of the ADA, make the employers' task of evaluating and responding to such requests difficult, Spanos explained.

"In many cases of accommodations for disabilities, the employer must thoroughly investigate the nature and reasons for the preferred accommodation and the question of undue hardship," he said. "Extensive discussion and possibly expert advice may be necessary to fully resolve accommodation issues."

Did Hobby Lobby Do Enough?

Andrew M. Gordon, an attorney with the law firm Hinshaw & Culbertson LLP in Fort Lauderdale, Fla., said the ADA is one of the most confusing laws for employers because the interactive process can create gray areas that can result in charges of discrimination and lawsuits.

"In this case, the EEOC appears to believe that Hobby Lobby reached the wrong conclusion after going through the interactive process regarding whether or not to allow this employee to use a service animal," Gordon said. "However, it is very important to keep in mind that this is a just a lawsuit—just allegations. This will be a very fact-intensive process and will not be a slam dunk either way."

Although the legal proceedings must play out, more effort could have been made to determine how the accommodation could have been provided, according to attorney Mark Kluger, founder of law firm Kluger Healey LLC in Fairfield, N.J.

For example, he wonders whether Hobby Lobby asked the employee's co-workers if any of them had an allergy or anxiety about dogs. Or the store could have checked to see if the dog could be contained behind the register with the employee.

"That might have required choosing a specific register for the employee or even providing a slightly expanded space, but it would be difficult to argue that such measures would be an undue hardship," Kluger said. "There is a no doubt a well-thought-out and documented interactive process that involves genuine consideration of proposed accommodations is critical for employers to be able to successfully defend a determination of undue hardship."