I received a lot of feedback on last week’s post. That was the one about an EEOC lawsuit alleging that a company violated the Americans with Disabilities Act when it allegedly failed to accommodate a disabled employee’s request to use a service dog.
Among the reader feedback was a question about what happens when permitting an employee to use a service dog would cause another employee’s pet allergies to flare up.
Back to basics under the ADA
The purpose of the ADA is to enable a qualified employee or applicant with a disability to perform the essential functions of the job by affording that individual a reasonable accommodation. Indeed, an employer must make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business.
In the case about which I blogged last week, the EEOC claimed that a trained service dog would have enabled the employee to help control anxiety and to wake him from nightmares caused by post-traumatic stress disorder. More importantly, it would have allowed the employee to perform the essential functions of the job without creating any undue hardship.
Making another employee sick is undue hardship, right?
The EEOC defines undue hardship as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation. In particular, an employer does not have to lower quality or production standards to make an accommodation.
Thus, it makes sense that helping one employee, while making another less productive, causes undue hardship.
So, allergies should trump service dog.
So, continue the interactive dialogue and explore other options.
Exploring ADA accommodations is an interactive process that requires both employer and employee to discuss various options in good faith. If a service animal causes another employee to get sick, there may still be ways to thread the needle.
- Allow the employees to work in different areas of the building.
- Establish different paths of travel for each employee.
- Provide one or each of the employees with private/enclosed workspace.
- Use a portable air purifier at each workstation.
- Allow flexible scheduling so the employees do not work at the same time.
- Allow one of the employees to work at home or to move to another location.
- Develop a plan between the employees so they are not using common areas – such as the break room and restroom – at the same time.
- Allow the employees to take periodic rest breaks if needed, e.g., to take medication.
- Ask the employee who uses the service animal if (s)he is able to temporarily use other accommodations to replace the functions performed by the service animal for meetings attended by both employees.
- Arrange for alternatives to in-person communication, such as e-mail, telephone, teleconferencing, and videoconferencing.
- Ask the employee who uses a service animal if (s)he is willing to use dander care products on the animal regularly.
- Ask the employee who is allergic to the service animal if (s)he wants to, and would benefit from, wearing an allergen/nuisance mask.
- Add HEPA filters to the existing ventilation system.
- Have the work area – including carpets, cubicle walls, and window treatments – cleaned, dusted, and vacuumed regularly.