*This article is the first of a series. Next month, Brent Siler highlights best practices for employers when employees submit requests for service animals in the workplace.

What are employer obligations when an employee asks to bring a service animal into the workplace? This is a question faced more and more by employers, and the Sixth Circuit Court of Appeals recently offered guidance, deciding a case that explains the proper analysis of these requests and shows how handling these issues the right way can lead to a win in the courtroom.

In Bennett v. Hurley Med. Ctr. (decided Nov. 9, 2023), plaintiff Bennett was a nursing student who was training at Defendant’s hospital. She suffered from a panic disorder and her dog, Pistol, was trained to recognize oncoming attacks and to remind her to take medication. She requested that Pistol be allowed to accompany her on her rounds and the hospital initially granted her request, pursuant to its service animal policy.

Unfortunately, both a staff member and a patient reported an allergic reaction to Pistol. In response, the hospital said Pistol could no longer accompany Bennett on her rounds and engaged in an interactive process to find possible alternatives, including crating Pistol on a separate floor and allowing her to take breaks to see Pistol.

Bennett refused and proposed that the hospital move patients and staff with allergies to separate floors. The hospital refused, arguing that moving patients and staff to other floors would compromise patient care and could not be a viable workplace alternative. Bennett completed her training without Pistol. She suffered no panic attacks throughout the remainder of her training.

Bennett filed suit under Title II of the ADA and state law, claiming that the hospital discriminated against her, failed to properly engage in the interactive process, and unlawfully denied her an accommodation. The Sixth Circuit dismissed her claim, noting that there was no dispute that a patient and a staff member had reported allergic reactions and Bennett had no evidence that the hospital was motivated by discrimination rather than the allergic reactions.

With regard to her claim that the hospital did not engage in the interactive process and denied her a reasonable accommodation, the court found that it was also undisputed that the hospital did grant her initial request and offered her the alternative of crating the dog on a different floor, which Bennett rejected. Regarding her reasonable accommodation claim, the court found that the hospital properly rejected her request because Pistol posed a direct threat to staff and patients and that the hospital did offer her a reasonable alternative accommodation.

Takeaways from the Bennett Case

At the outset, employers should keep in mind that there is a distinction between employees and other people. Customers and other people using your business as a place of public accommodation are subject to a different standard and some other laws, such as the law regulating airlines, will also have their own rules.

Regarding employees, you can treat a request for a service animal the same as any other accommodation request, meaning you are obligated to engage in an interactive process to identify reasonable accommodations for the employee that will allow the employee to fulfill the essential functions of his or her position. The employee is not necessarily entitled to the accommodation that they prefer, only one that is reasonable in that it will allow the employee to perform the job. The employer is not required to grant a request for reasonable accommodation if doing so would pose a direct threat to the safety of others, would fundamentally alter the nature of the business, or if the animal is “out of control” or not housebroken.

The hospital in Bennett won its case because it followed these principles and did so in a way that allowed it to prove its case in court as a matter of law.

There are several further takeaways.

• Have a Written Policy: The hospital had a written policy establishing that it did allow service animals and initially granted Bennett’s request in the absence of any information that doing so would be problematic. The hospital only rejected her request when it had complaints from a staff member and a patient.
• Document Everything: One of the key goals of the ADA is to prevent employers from failing to work with employees on accommodations based on speculation or fear of potential problems. In the context of determining whether a service animal poses a direct threat to safety, the law provides that the employer should conduct an individualized inquiry considering the nature, duration, and severity of the risk, the probability that injury will occur, and whether reasonable measures could mitigate the risk. The hospital allowed Pistol to accompany Bennett on her rounds until an issue arose. When there is a complaint, harm to an employee, or proof of the risk coming to fruition, document everything. In Bennett, I would give the hospital’s documentation an A+. They responded promptly in writing, described why her accommodation did not work, referenced the fact that they had researched alternatives, consulted with medical providers, offered an alternative, and offered to continue talking.
• Engage in an Interactive Process: The hospital documented efforts to engage in the interactive process and to identify alternative accommodations. The process is mandatory and requires the employer to act in good faith to initiate an informal and interactive process to identify the limitations from the disability and accommodations to overcome them. The process is only designed to be a means to identify possible accommodations, and the employer is only liable for failure to engage in it if the employee can show that there was a reasonable accommodation available that could have been identified had the employer engaged in the process. The employer’s burden is to try to find accommodation, not necessarily to succeed in doing so.

The hospital’s communications with Bennett left little doubt that they participated in the interactive process in good faith. The court noted that in revoking Bennett’s right to take Pistol on rounds, the hospital referenced the allergic reactions that occurred, indicated that they had researched potential alternative accommodations and had “extensive” dialogue with medical providers on the risks involved, and offered to let Bennett crate Pistol on another floor and to take breaks to visit as needed. The hospital also indicated it was “open to continued dialogue” on the issue. These facts and the hospital’s documentation of them showed that they engaged in the interactive process in good faith and led to dismissal of Bennett’s case.