“Service Animals Need Not Be Accommodated Under Every Circumstance.”
Although federal law offers strong protections for the use of service dogs (and miniature horses!), such use is not entirely without limitations, as the U.S. Court of Appeals for the Sixth Circuit recently found.
In Bennett v. Hurley Medical Center, a nursing student had a service dog that could recognize the onset of a panic attack and enable the student to take medication to minimize the attack. She requested that the dog be allowed to accompany her while working on her clinical rotation at the hospital. Although the hospital initially agreed to her request, a staff member and a patient experienced severe allergic reactions to the dog, with other individuals reporting allergies as well.
The hospital revoked the student’s ability to have the dog with her at all times because the dog posed a direct threat to these staff and patients. Nor would it be reasonable to relocate the affected staff members and patients – in particular, the nurses are unionized with negotiated terms governing reassignments, the hospital was already short-staffed, and certain nurses have specialized skills that cannot be transferred to other units (which would also impact patient care). There was also concern about not knowing which patients might have dog allergies, and safety issues regarding having a dog around immunocompromised or unconscious patients in the unit. The hospital instead proposed an accommodation of crating the dog on a separate floor and providing the student with the ability to take necessary breaks to be with her dog. The student refused the proposed accommodation as insufficient, and sued for violations of the Americans with Disabilities Act.
The Sixth Circuit found that the hospital did not discriminate against the student based on her disability of panic disorder; rather, the decision to prevent the dog from accompanying her on her rounds was due to staff and patient allergies to the dog. As for her claim that she was denied the reasonable accommodation of having her service dog with her, the Sixth Circuit looked to the ADA’s service animal regulations, noting that “Service animals need not be accommodated under every circumstance.” Among the reasons that a service animal may be excluded from the premises of a public entity is where it poses a direct threat to the health or safety of others.
In assessing whether a service animal poses a direct threat, the regulations set forth three factors: (1) the nature, duration, and severity of the risk; (2) the probability that the potential injury will actually occur; and (3) whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. In this case, the Sixth Circuit found that there was actual risk of harm, in that several individuals experienced severe allergic reactions, and there was no reasonable way to mitigate that risk, since moving patients and staff was not feasible under the specific circumstances. Consequently, the dog posed a direct threat to the patients and staff, and the hospital could legally prohibit it from accompanying the student.
The lesson for employers here is that there is no absolute right to bring service animals into the workplace. The regulations do provide for excluding service animals in limited circumstances, such as when the service animal poses a direct threat to others (but the threat must be significant and real, not speculative), as well as when the animal is out of control, not housebroken, or would fundamentally alter the activities of the public entity. We further note that therapy or comfort animals are not service animals, and a very different analysis applies to their use.