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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.
Posted by Philip Miles at 9:02 PM
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4 comments:

  1. your first bullet point mixes the concepts of "reasonable" and "undue hardship" although they're separate and both must be applied.

    "reasonable" as related to accommodations means it solves the problem: if someone can't walk but needs to move, a "reasonable accommodation" is ANYthing that helps them move: a skateboard, wheelchair, prosthetic legs, flying carpet, etc. if any/all serve the purpose, those all are "reasonable" accommodations.

    so, a spice-warning dog is a "reasonable accommodation" if it helps an employee who would be disabled by spice to work.

    what is "reasonable" as an accommodation is distinct from the separate concept of "undue hardship." so, whether the employer must buy/subsidize a wheelchair for mobility-challenged workers (assuming that they could work with the wheelchair) is a question of undue hardship, and not of reasonability.

    an accommodation is "reasonable" if it works; but even if it works, whether it's an "undue hardship" depends on whether it's too much trouble or expensive.

    so, the dog (which is a "reasonable accommodation" for employee #1) may be an "undue hardship" for the company (due to its effect on other employees, expense to the company, etc.). however, even if the dog might be an undue hardship, this won't change the fact that the dog is a "reasonable" accommodation for employee #1 since it allows employee #1 to work.
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  2. Good point Kent. From the statute: "not making reasonable accommodations . . . . unless such covered entity can demonstrate that the accommodation would impose an undue hardship . . . ." You are correct and thank you for pointing that out.
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  3. Hey, I live only about half an hour away from State College! It's really kind of freaky to find someone writing about this so close to home! I think this is an important topic that will need addressing more and more as time goes on.

    A dear friend of mine had difficulty with one of her college classes, as another student claimed an allergy to her guide dog (yet the other student could be around other dogs; there are breed-specific allergies).

    My own mother is allergic to dogs, and I have a guide dog as well.

    In regards to my friend, I told her that the best thing she could do was to see that her dog was extremely well groomed; that's what I do with my dog, and it's been trial and error. Luckily, my mother has only reacted once, and I think it was because the dog licked her.

    I am very anxious to see how other similar cases pan out. In my friend's case, the other student chose to arrange for independent study for the following semester, which allowed my friend to keep taking her dog to class.

    As for me, I groom my dog with several brushes every day, to be sure she sheds as little as possible.

    I don't think there is really much more that can be done in a case of dog versus allergy--unless the Fedral government instills a program that requires all service dog owners to use Allerpet (and hopefull offers it for free or at a discount!).
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  4. Unfortunately, allergies are not that simple. What affects one dog allergic person may not affect another dog allergic person. Not all allergies are the same nor are allergic reactions. While one allergic person may experience a tickle to the roof of the mouth, another may get a sinus head ache, another may go into shock, their throat may swell up and they could suffocate. Allergies may seem like a minor inconvenience to some, while others, life threatening. Antihistamines are vital, but should never be seen as a cure. Antihistamines only alleviate symptoms and block certain histamines, not all and are no guarantee that an allergic person could never experience a allergic reaction.

    As a person who is classified as "super allergic", I am mainly affected twice a year, early spring and early fall, though I am also allergic to pet dander, including cats and dogs. I have to be conscious of my surroundings and be conscious to various reactions I may experience and
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