Service Dog Might Not Be a Reasonable Accommodation.

The U.S. Court of Appeals for the Eighth Circuit does not appear to be a fan of service animals in the workplace. Following last year’s decision, in which it rejected a train conductor’s accommodation request to bring his dog to work to mitigate his PTSD and migraines, as discussed in our March 2023 E- Update, the Eighth Circuit has doubled down on the principle that service dogs, who provide the same assistance whether at or away from work, are not a benefit or privilege of employment to which an employee is entitled under the Americans with Disabilities Act.

In Howard v. City of Sedalia, Missouri, a pharmacist with diabetes sought to bring a new service dog, who could detect an impending blood sugar drop, to the pharmacy for a six-month training period, after which she would not need to bring it to work. Her request was denied because of the risk of contamination, and she resigned. She refused to reconsider her resignation, even though her employer offered to have a third party evaluate the risks of having a service animal in the pharmacy. She sued, and a jury awarded her over $100,000 in damages.

On appeal, however, the Eighth Circuit overturned the jury verdict. Under the ADA, absent an undue hardship, employers must provide reasonable accommodations not only to enable employees with disabilities to perform the essential functions of their job, but also to enjoy equal benefits and privileges of employment as non-disabled employees. In this case, the employee was capable of performing her essential job functions without the dog, so the only issue was whether the dog provided her access to equal benefits and privileges of employment. However, the only benefit the pharmacist identified was to improve her job performance – but the Eighth Circuit had held in the earlier case that the “benefits and privileges of employment” refers only to employer-provided services. Moreover, as the Eighth Circuit noted, the ADA regulations state that an employer is not required to provide as an accommodation a personal item that assists the employee both on and off the job, which is what the service dog does. (We caution, however, that the Eighth Circuit’s position on the service as a personal item is one that may not be shared in other Circuits).

This case, like the earlier one, reminds employers that the reasonable accommodation obligation is not just limited to situations involving an employee’s essential job functions. But it also highlights that the obligation is limited to employer-provided services and facilities and, further, that employers may not need to provide an accommodation if such accommodation assists the employee outside as well as at the workplace.