Thursday, May 13, 2010

Service Dog v. Allergies - ADA Accommodation Conflict

An interesting little ADA issue has generated a lot of buzz this week. The New York Times ran When Treating One Worker’s Allergy Sets Off Another’s; Jon Hyman's Ohio Employer's Law Blog ran Battle of the Accommodations; and Overlawyered had ADA Accommodation vs. ADA Accommodation.

The quick version:
  • Employee A has a potentially fatal paprika allergy
  • Employee A gets a paprika-sniffing dog that she brings to work
  • Employee B is allergic to the dog
So, what should the employer do? The NYT article quotes an EEOC ADA rep as saying "what’s important when you have two people with disabilities is you don’t treat one as inherently more important than the other."

OK, I don't have time to write a law review article on this but I'll offer a few initial thoughts:
  • An employee with a disability is entitled to a reasonable accommodation under the ADA. Bringing a service dog to work would accommodate the paprika-allergic woman in this scenario. However, bringing the dog to work compromises the health of another employee. If an accommodation adversely affects the health of other employees, does it impose an undue hardship? 
  • Even if allowing the dog does not impose an undue burden, the employee is not entitled to the specific accommodation she requests. The employer may identify and implement a different accommodation.
  • If allowing the dog is an undue burden, that does not absolve the employer of its obligation to provide a reasonable accommodation. 
  • Regardless of whether allowing the dog is an undue hardship, the employer would still need to engage the employee in the interactive process. Perhaps there is something else they can work out - another paprika detection mechanism, shift changes, a "dog friendly" zone, restrictions on food in the workplace, etc.
  • Complicating factor: Other laws expressly addressing service animals in the workplace. For example, my hometown of State College, Pennsylvania has an anti-discrimination ordinance that prohibits discrimination on the basis of "use of guide or support animals." Same language appears in the Pennsylvania Human Relations Act (PHRA)
Isn't this fun? The aforementioned Jon Hyman will appear on The Proactive Employer podcast for The Ultimate ADA Accommodation Cage Match: Your Dog Versus My Allergies. I'll definitely tune in for that.

[Update: Portions of this post were re-written to correct the error noted by the commenter below - properly referencing undue hardship where I had mistakenly used "not reasonable."]

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.