Does an Employer Have to Allow an Employee’s Service Animal?

June 8, 2024

I always assumed that a dog satisfying the definitions of a service animal under the DOJ final regulations for title II and title III of the ADA would have to be automatically allowed by an employer where the employee has a service dog satisfying that definition. At least in the Eighth Circuit, that isn’t the case. The Eighth Circuit has also set up a circuit court split with respect to the case that we discussed last week. A law 360 article on this case says that plaintiff will be seeking review by the United States Supreme Court. Since there is a circuit court split, the possibility of the Supreme Court granting review increases. The case of the day is Howard v. City of Sedalia, Missouri, here. As usual, blog entry is divided into categories (I decided for organizational purposes to go about the court’s reasoning not in the order that it appears in the opinion), and they are: facts; court’s reasoning that certain arguments were not preserved properly for appeal; court’s reasoning that privileges and benefits of employment were not involved, so the dog need not be granted as a reasonable accommodation in order for plaintiff to access privileges and benefits of employment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

Samantha Howard is a pharmacist who has suffered from Type I diabetes since infancy. While attending pharmacy school, she was diagnosed with hypoglycemic unawareness, which prevents her from knowing when her blood sugar has dropped to a dangerously low level. In March 2019, after graduating, Howard began working as a pharmacist at Bothwell Regional Medical Center (Bothwell), a facility operated by the City of Sedalia, Missouri. Howard told her supervisor, Brad Nicholson, that she has diabetes; he granted her request to keep food and drink at her desk while working alone. She did not inform Bothwell that she was on a waiting list for a diabetic-alert service dog that can detect an impending blood sugar drop to help a diabetic prevent and mitigate hypoglycemic emergencies.

In early June 2020, Howard was told a service dog (“Corry”) would be available in August. She told Nicholson and Bothwell’s Director of Human Resources and Support Services that she would need the dog by her side constantly for six months to train the dog; after that, she could go to work without the dog. She requested being allowed to bring the service dog into the main pharmacy, but not the sterile “clean room” or the “anteroom,” where employees prepare for clean room activities. Bothwell, with no prior employee request for a service animal accommodation, assembled a team of managers and medical staff to analyze Howard’s request; each member concluded that the presence of a service dog in the pharmacy was a risk to the safety of Bothwell’s patients and should not be allowed.

In August, Bothwell emailed Howard that her request to bring a service animal into only certain areas of the pharmacy was denied because “such an action would not resolve the potential risks of contamination,” but that Bothwell intended to work with Howard to find a different accommodation. When the parties could not agree on an alternative accommodation, Howard resigned on September 18. Bothwell urged her to reconsider. “[A]fter talking with counsel,” Howard declined Bothwell’s proposal that a mutually-agreed-upon third party inspect the pharmacy and determine whether her service animal would pose a risk, stating, as she repeated at trial, that she would not accept any accommodation other than bringing her service dog into the pharmacy.

Howard filed a lawsuit alleging that the failure to make a reasonable accommodation violated the ADA. After a four-day trial, the jury returned a verdict for Howard, awarding her $111,548.86 in compensatory damages and $18,451.14 in emotional damages. Defendant appealed its denial of its motion for judgment as a matter of law.

Court’s Reasoning That Certain Arguments Were Not Preserved Properly for Appeal

Howard through her attorney, abandoned her essential function claim when she agreed not to submit a jury instruction on that issue during argument on defendant’s motion for judgment as a matter of law. It doesn’t matter that Howard submitted a proposed jury instruction and proceeded only on a benefits and privileges theory because that was the district court’s view of the case. The back-and-forth with the trial judge clearly gave Howard the opportunity to preserve an essential functions of the job argument for appeal, but counsel elected not to proceed down that path. Howard could have also cross appealed the district court’s decision not to give the proposed instruction dealing with essential functions of the job but did not do so.
The issue of whether a new trial should be granted rather than judgment as a matter of law was also waived because Howard never argued in her appellate brief what issues should be available if the case were to be remanded.
The argument that 29 C.F.R. §1630.2 (o)(1)(iii) as construed by the EEOC in their interpretive guidance on title I and in their technical assistance manual is an invalid agency interpretation of the governing ADA statutory provisions was not raised by Howard and is without merit.

III

Court’s Reasoning That Privileges and Benefits of Employment Were Not Involved, so the Dog Need Not Be Granted As a Reasonable Accommodation for Plaintiff to Access Privileges and Benefits of Employment

EEOC implementing regulations define the term reasonable accommodation as including three distinct requirements: 1) modifications or adjustments enabling a job applicant to be considered; 2) modifications or adjustments to the work environment, which in the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; and 3) modifications or adjustments enabling a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities (emphasis in opinion).
In Hopman, which we discussed here, the Eighth Circuit said that the ADA intended to bar employer discrimination in providing a benefit or privilege offered to employees that does not directly affect the ability of a qualified individual to perform her job’s essential functions.
Citing to the EEOC’s interpretive guidance, the court noted that the EEOC has said that an adjustment or modification that assists the individual throughout his or her daily activities, on and off the job, is a personal item that the employer is not required to provide. That is, an employer is not generally required to provide an employee with a disability with a prosthetic limb, wheelchair, or eyeglasses. Nor would an employer have to provide as an accommodation any amenity or convenience that is not job-related… That is not provided to employees without disabilities (emphasis in opinion). This obligation applies to all services and programs provided in connection with employment, and to all non-work facilities provided or maintained by an employer emphasis in opinion), for use by its employees. So, the obligation to accommodate is applicable to employer-sponsored (emphasis in original), placement or counseling services, and to employer provided (emphasis in original), cafeterias, lounges, gymnasium, auditorium, transportation and the like.
EEOC guidance also says that an individual with a disability is otherwise qualified if he or she is qualified for a job, except that because of the disability, he or she needs a reasonable accommodation to be able to perform the job’s essential functions.
EEOC guidance also says that when no duty exist to provide an adjustment or modification because it it is considered a personal item under the regulations, it is not a violation of the ADA to not provide that adjustment or modification (the court’s formulation here is extremely confusing but I believe (see also later in this blog as well for why I am convinced this is the case), that is what the court is trying to say.
Howard did not dispute that she was qualified to do her job with or without reasonable accommodations. The district court observed that Howard did her job from March 2020 through August 2021 by her own admission and received good recommendations and got raises without a service animal. There was also no testimony that anything had changed over time.
In Hopman, the Eighth Circuit said that benefits and privileges of employment: 1) refers only to employer provided services; 2) must be offered to non-disabled individuals in addition to disabled ones; 3) does not include freedom from mental or psychological pain; and 4) Hopman failed to introduce the evidence needed to prove that claim.
In response to defendant’s question, as part of the interactive process, asking Howard to detail what specific parts of the job she was unable to perform because of her impairment, she responded that, “a diabetic service animal would enhance my ability to function in all aspects of my role as a pharmacist.” Such a response is a job performance argument, an argument she also made in her trial testimony.
At trial, Howard was asked how the dog would allow her to enjoy the same benefits as the other employees in the pharmacy who do not have disabilities. Her response was that she imagined that other employees have the ability to manage their conditions however they see fit and with the service animal being there she was able to do the same thing, manage her diabetes and not have her employer dictate what she can and cannot do, especially when her employer has never talked to her physician or knows anything about her diabetes. This statement of Howard is also a job performance argument.
The governing regulations limit an employer’s ADA duty to make this accommodation to employer-sponsored placement or counseling services, and to employer provided facilities. That limitation reflects long-standing judicial and agency efforts to keep accommodation requirements (emphasis in opinion), within manageable bounds. The employer’s duty to provide equal benefits and privileges of employment is limited by the plain text of the regulation.
Howard failed to identify any employer-sponsored benefit or program that she lacked access to.
Under controlling regulation, if an adjustment or modification assists the individual throughout his or her daily activities, on and off the job, it will be considered a personal item that the employer is not required (emphasis in opinion), to provide. That is, providing a service dog at work so that an employee with a disability has the same assistance the service dog provides away from work is not a cognizable benefit or privilege of employment.

Thoughts/Takeaways

This was not a case where the argument was that the service animal was needed in order for the plaintiff to perform the essential functions of the job with or without reasonable accommodations as plaintiff waived that argument.
“Privileges and benefits, has a fairly narrow defined meaning.
Under the reasoning of this court, a service animal would never be allowed for an individual with a disability to help them enjoy the privileges and benefits of employment regardless of what those privileges and benefits are because the dog works both at work and away from work. This reasoning to my mind goes too far as a service animal provides the very same functions as hearing aids, glasses, wheelchairs, etc. It is one thing to say that an employer does not have to provide those items for an individual with a disability. It is quite another to say that an employer does not have to allow those items, which is what is going on here. In my view, the EEOC in the guidances cited by the court are talking about the distinction between having to provide an item v. having to allow an item. The two are not at all the same thing as the Eighth Circuit seems to suggest.
When dealing with service animals in the workplace, it is critical, especially after this case, to make sure that essential functions of the job with or without reasonable accommodations arguments are preserved and those arguments made. It is also clear that a service animal under this decision would never have to be allowed by an employer for that animal to help an employee enjoy the privileges and benefits of employment regardless of how privileges and benefits might be defined. That is a bridge too far.
The circuit court split occurs with respect to the case we discussed last week, here, in an unpublished decision from the Sixth Circuit. There, the Sixth Circuit talks about how reasonable accommodations need to focus on obstacles to employment, which is most certainly is not the focus of the Eighth Circuit. The 11^th Circuit, as we have discussed here, also focuses on the disability and not on the essential functions of the job with respect to what is needing to be accommodated. The Second Circuit in a decision from quite a long time ago, tracks the 11^th Circuit, as we discussed here.
So, as a result of other circuits focusing on either obstacles or on accommodating the disability and not the job’s essential function, there is quite arguably a circuit court split that tees up for Supreme Court review. As noted above, this particular opinion as phrased goes way too far (dogs which are incredibly popular in the U.S. are also involved). So, I would not assume that the Supreme Court would decide against Howard should it decide to hear the case.
In an appellate brief, be sure to discuss what should be addressed by the lower court should the appellate court remanded the case for further proceedings.
It will be interesting to see if the EEOC gets involved as an amicus going forward as their guidances and regulations could very well have been misinterpreted by the Eighth Circuit.
The court only implicitly addresses how to analyze reasonable accommodations. They strongly suggest there must be a direct link between the accommodation and the activity and that is not what the Sixth Circuit did in Yanick, which we discussed last week. It isn’t the approach of the 11^th Circuit or the Second Circuit either.
An argument can be made that the Eighth Circuit has misinterpreted the EEOC’s interpretive guidance by confusing providing v. allowing. So, that tees up a Kisor, discussed here, issue for the Supreme Court as to how much a court should defer to the EEOC guidance, assuming the Eighth Circuit’s view is correct in the first place, which is by no means a foregone conclusion. Perhaps, the EEOC will now consider adopting as a final regulation rules similar to the DOJ service animal rules for Title II and Title III.
You often see courts using the term, “otherwise qualified” in ADA cases. It is actually a Rehabilitation Act term and not an ADA term at all. However, the two terms have identical meanings. Personally, I prefer “otherwise qualified,” to “qualified,” as the former clearly represents a term of art.
Why the employer did not talk to Howard’s physician is not clear. If the employer had, maybe the employer would have been able to rule out all other alternatives besides the service animal. The employer may have also found out that the service animal was the only possibility. An interactive process exploring all possibilities would have saved a lot of litigation costs.