By Keith Anderson and Anne Yuengert
Law360 (March 10, 2023, 4:25 PM EST) --
Title I — the employment provisions of the Americans with Disabilities Act — requires employers and places of public accommodation to provide reasonable accommodations for disabilities.
We have all seen wheelchair ramps and accessible restrooms. What happens when employee or visitor to a place of public accommodation requests a more personal reasonable accommodation, like a service animal?
In general, the ADA requires an individualized determination about whether the accommodation will be granted. But what about a request from a nursing intern to bring her service dog to a hospital around patients? Could this qualify as a reasonable accommodation?
The U.S. District Court for the Eastern District of Michigan's January Bennett v. Hurley Medical Center decision takes a long look at the reasonable accommodation process.[1]
A Nursing Student and her Service Dog, Pistol
Mia Bennett was a nursing student intern assigned to do her clinical work at the Hurley Medical Center. Bennett suffered from generalized anxiety disorder with a history of panic attacks and her corgi service dog, Pistol, assisted her with her panic attacks.
As a nursing intern, Bennett was to do rotations in the hospital, following doctors and nurses making their rounds of patients' rooms. Before her first round, Bennett sent a request that Pistol be allowed to accompany her on her rotations as a reasonable accommodation for her disability.
Policy 4050 of Hurley's standard practices allows service animals for disabilities, but the policy outlined that there would be certain areas where service animals would not be permitted based on reasonable judgment and potential risks involved, including where such accommodation "jeopardize[d] the safe operation of the facility." Hurley Medical Center considered and granted Bennett's accommodation request.
On Bennett's first day of rounds with Pistol, employees and patients on floor 7E had allergic reactions to Pistol's presence. Not surprisingly, Hurley Medical Center reevaluated the accommodation, considering alternatives, including moving nurses with allergies — which was not an option because of the collective bargaining agreement and continuity of care — or patients with allergies — which also was not an option because patients sometimes arrived unconscious.
After discussions with Bennett, Hurley Medical Center offered the alternative accommodation of keeping Pistol on a different floor during patient care time frames and allowing her to take breaks to visit Pistol.
In making the offer, Hurley Medical Center noted that it "[remains] open to continued dialogue on this matter." Hurley Medical Center also offered extra tutoring to Bennett for any rounds that she missed because of breaks spent with Pistol.
Bennett rejected the crating option and later indicated that tutoring could not "replicate the patient experience." She did her rotation without Pistol and filed suit under Title II of the ADA contending she was denied the benefits of services of a public entity, was subjected to discrimination, and was otherwise limited in the enjoyment of rights and privileges enjoyed by others.
She also brought a claim under Michigan's Persons with Disabilities Civil Rights Act.
After discovery concluded, Hurley Medical Center filed for summary judgment.
ADA, Reasonable Accommodation and Service Animals
Whether you are under ADA Title I, or Title II — state and local government services — a plaintiff can bring claims for intentional disability discrimination and/or failure to provide reasonable accommodation. Under Title I, the law is clear that an employer must engage in an interactive process with the employee to determine what, if any, reasonable accommodations are available. According to the court, Title lI also requires this interactive process.
According to Title 28 of the Code of Federal Regulations, Section 35, the use of service animals is reasonable as an accommodation under the ADA unless one of four exceptions apply:
1. Granting access would fundamentally alter the nature of the program;
2. The animal poses a direct threat to the health and safety of others;
3. The animal is out of control; or
4. The animal is not housebroken.[2]
District Court's Ruling
U.S. District Judge Paul D. Borman focused on only one issue: Was Pistol a direct threat to the health and safety of others?
Section 35 states that proving a direct threat is a "heavy burden" and must be "based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities." In the court's eyes, Hurley Medical Center met this standard.
First, Hurley Medical Center let Bennett bring Pistol, and it didn't go well. Pistol's presence actually caused allergic reactions from staff and patients. Patients on one of the floors were immunocompromised. The court found that Hurley Medical Center based its decision on actual, not speculative or generalized, risks.
Second, Hurley Medical Center engaged in the interactive process and made an individualized assessment. Hurley Medical Center had numerous communications about accommodation options — with Bennett, with Bennett's advocates and with medical professionals. The decision was not about any service dog — only Pistol.
Finally, Hurley Medical Center only barred Pistol from specific floors in the hospital but said Bennett could crate the dog on another floor and take breaks as necessary. Bennett rejected that option and, apparently, completed her training without Pistol.
Not Over Yet
Bennett appealed the district court's decision to the U.S. Court of Appeals for the Sixth Circuit, which will now weigh in on the district court's analysis of Hurley Medical Center's reasonable accommodation process and decision.[3] Judge Borman's opinion seemed well supported and thorough, but we will see what the reviewing court thinks.
Takeaways
Depending on the type of industry and workplace structure, companies are likely to face requests for accommodations involving service animals from employees, customers or visitors. Although the court adds that "this case involves a special situation, in which a service dog would repeatedly come within close proximity to all of the vulnerable, immunocompromised hospital patients," there are some lessons for all of us:
Don't reject a request for accommodation out of hand.
Just because you have never allowed a dog into your facility doesn't mean you don't have to allow a service dog. Because Hurley Medical Center initially allowed the accommodation, it had real data on which to make a later decision to deny it. As Judge Borman saw it, Hurley Medical Center "did not act based purely on speculation or generalizations" but reached its decision only after the dog had already caused the allergic reactions. Think about whether you can test drive an accommodation, evaluate it and be willing to adjust.
Communicate, collaborate, deliberate — engage in the interactive process.
All of your communications about reasonable accommodations should make clear you are looking for a way to enable the employee to do his or her job, or the customer/visitor to access your services. Remember that for a process to be interactive it should probably involve more than one communication. Hurley Medical Center had extensive documented communications with Bennett.
Don't be the one to give up on the accommodation discussion.
In describing the interactive process, the Sixth Circuit noted in its 2007 Kleiber v. Honda of America MFG decision, citing other cases and statutes, that:
The interactive process requires communication and good-faith exploration of possible accommodations. ... [T]he interactive process is mandatory, and both parties have a duty to participate in good faith. When a party obstructs the process or otherwise fails to participate in good faith, courts should attempt to isolate the cause of the breakdown and then assign responsibility.
If you deny a requested accommodation, you will need to show that you acted in good faith and looked for reasonable accommodations. You should offer any type of workable accommodation and let the employee/customer/visitor say no or offer a different solution. If they offer an alternative, make sure you take a good look at whether it will work. Consider making clear that you are always willing to keep talking about alternatives, like Hurley Medical Center did in this case.
Make an individualized determination.
Hurley Medical Center did not bar all service animals, just Pistol, and only after it was clear he caused allergic reactions.
Additionally, Hurley Medical Center only barred Pistol from specific floors, not the entire hospital.
In considering accommodations, don't worry about setting a precedent — limit the decision to this person's request. Remember that the employee or customer is not entitled to their desired accommodation, just a reasonable one that enables them to perform their duties/access your services. In many instances, there will not be a bright line; it will be a judgment call based on all the facts and circumstances.
Service animals will generally be allowed.
Although Hurley Medical Center prevailed in this matter, remember that service animals — limited to dogs — are generally going to be a reasonable accommodation. But the service dog must be kept under control and generally harnessed, leashed, or tethered. Per the ADA guidance for service animals:[4]
Under the ADA, State and local governments, businesses, and nonprofit organizations that serve the public generally must allow service animals to accompany people with disabilities in all areas of the facility where the public is allowed to go. ... Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility ... they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.
The Bennett case has a good discussion on the interactive process and individualized actions the hospital took to try and accommodate Bennett with a service animal. In the unique setting of a hospital, safety concerns were the priority, but the trial court's opinion will undergo the appellate court's review.
Keith S. Anderson and Anne R. Yuengert are partners at Bradley Arant Boult Cummings LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Bennett v. Hurley Medical Center
, Case No. 2:21-cv-10471-PDB-DRG, ECF No. 20, 2023 WL 319925 (E.D. Mich. Jan. 19, 2023).
[2] 28 C.F.R. §35.136. https://www.govinfo.gov/content/pkg/CFR-2011-title28-vol1/pdf/CFR-2011-title28-vol1-sec35-136.pdf.
[3] United States Court of Appeals for the Sixth Circuit, Appeal No. 23-1162.
[4] https://www.ada.gov/resources/service-animals-2010-requirements/.
Law360 (March 10, 2023, 4:25 PM EST) --
Title I — the employment provisions of the Americans with Disabilities Act — requires employers and places of public accommodation to provide reasonable accommodations for disabilities.
We have all seen wheelchair ramps and accessible restrooms. What happens when employee or visitor to a place of public accommodation requests a more personal reasonable accommodation, like a service animal?
In general, the ADA requires an individualized determination about whether the accommodation will be granted. But what about a request from a nursing intern to bring her service dog to a hospital around patients? Could this qualify as a reasonable accommodation?
The U.S. District Court for the Eastern District of Michigan's January Bennett v. Hurley Medical Center decision takes a long look at the reasonable accommodation process.[1]
A Nursing Student and her Service Dog, Pistol
Mia Bennett was a nursing student intern assigned to do her clinical work at the Hurley Medical Center. Bennett suffered from generalized anxiety disorder with a history of panic attacks and her corgi service dog, Pistol, assisted her with her panic attacks.
As a nursing intern, Bennett was to do rotations in the hospital, following doctors and nurses making their rounds of patients' rooms. Before her first round, Bennett sent a request that Pistol be allowed to accompany her on her rotations as a reasonable accommodation for her disability.
Policy 4050 of Hurley's standard practices allows service animals for disabilities, but the policy outlined that there would be certain areas where service animals would not be permitted based on reasonable judgment and potential risks involved, including where such accommodation "jeopardize[d] the safe operation of the facility." Hurley Medical Center considered and granted Bennett's accommodation request.
On Bennett's first day of rounds with Pistol, employees and patients on floor 7E had allergic reactions to Pistol's presence. Not surprisingly, Hurley Medical Center reevaluated the accommodation, considering alternatives, including moving nurses with allergies — which was not an option because of the collective bargaining agreement and continuity of care — or patients with allergies — which also was not an option because patients sometimes arrived unconscious.
After discussions with Bennett, Hurley Medical Center offered the alternative accommodation of keeping Pistol on a different floor during patient care time frames and allowing her to take breaks to visit Pistol.
In making the offer, Hurley Medical Center noted that it "[remains] open to continued dialogue on this matter." Hurley Medical Center also offered extra tutoring to Bennett for any rounds that she missed because of breaks spent with Pistol.
Bennett rejected the crating option and later indicated that tutoring could not "replicate the patient experience." She did her rotation without Pistol and filed suit under Title II of the ADA contending she was denied the benefits of services of a public entity, was subjected to discrimination, and was otherwise limited in the enjoyment of rights and privileges enjoyed by others.
She also brought a claim under Michigan's Persons with Disabilities Civil Rights Act.
After discovery concluded, Hurley Medical Center filed for summary judgment.
ADA, Reasonable Accommodation and Service Animals
Whether you are under ADA Title I, or Title II — state and local government services — a plaintiff can bring claims for intentional disability discrimination and/or failure to provide reasonable accommodation. Under Title I, the law is clear that an employer must engage in an interactive process with the employee to determine what, if any, reasonable accommodations are available. According to the court, Title lI also requires this interactive process.
According to Title 28 of the Code of Federal Regulations, Section 35, the use of service animals is reasonable as an accommodation under the ADA unless one of four exceptions apply:
1. Granting access would fundamentally alter the nature of the program;
2. The animal poses a direct threat to the health and safety of others;
3. The animal is out of control; or
4. The animal is not housebroken.[2]
District Court's Ruling
U.S. District Judge Paul D. Borman focused on only one issue: Was Pistol a direct threat to the health and safety of others?
Section 35 states that proving a direct threat is a "heavy burden" and must be "based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities." In the court's eyes, Hurley Medical Center met this standard.
First, Hurley Medical Center let Bennett bring Pistol, and it didn't go well. Pistol's presence actually caused allergic reactions from staff and patients. Patients on one of the floors were immunocompromised. The court found that Hurley Medical Center based its decision on actual, not speculative or generalized, risks.
Second, Hurley Medical Center engaged in the interactive process and made an individualized assessment. Hurley Medical Center had numerous communications about accommodation options — with Bennett, with Bennett's advocates and with medical professionals. The decision was not about any service dog — only Pistol.
Finally, Hurley Medical Center only barred Pistol from specific floors in the hospital but said Bennett could crate the dog on another floor and take breaks as necessary. Bennett rejected that option and, apparently, completed her training without Pistol.
Not Over Yet
Bennett appealed the district court's decision to the U.S. Court of Appeals for the Sixth Circuit, which will now weigh in on the district court's analysis of Hurley Medical Center's reasonable accommodation process and decision.[3] Judge Borman's opinion seemed well supported and thorough, but we will see what the reviewing court thinks.
Takeaways
Depending on the type of industry and workplace structure, companies are likely to face requests for accommodations involving service animals from employees, customers or visitors. Although the court adds that "this case involves a special situation, in which a service dog would repeatedly come within close proximity to all of the vulnerable, immunocompromised hospital patients," there are some lessons for all of us:
Don't reject a request for accommodation out of hand.
Just because you have never allowed a dog into your facility doesn't mean you don't have to allow a service dog. Because Hurley Medical Center initially allowed the accommodation, it had real data on which to make a later decision to deny it. As Judge Borman saw it, Hurley Medical Center "did not act based purely on speculation or generalizations" but reached its decision only after the dog had already caused the allergic reactions. Think about whether you can test drive an accommodation, evaluate it and be willing to adjust.
Communicate, collaborate, deliberate — engage in the interactive process.
All of your communications about reasonable accommodations should make clear you are looking for a way to enable the employee to do his or her job, or the customer/visitor to access your services. Remember that for a process to be interactive it should probably involve more than one communication. Hurley Medical Center had extensive documented communications with Bennett.
Don't be the one to give up on the accommodation discussion.
In describing the interactive process, the Sixth Circuit noted in its 2007 Kleiber v. Honda of America MFG decision, citing other cases and statutes, that:
The interactive process requires communication and good-faith exploration of possible accommodations. ... [T]he interactive process is mandatory, and both parties have a duty to participate in good faith. When a party obstructs the process or otherwise fails to participate in good faith, courts should attempt to isolate the cause of the breakdown and then assign responsibility.
If you deny a requested accommodation, you will need to show that you acted in good faith and looked for reasonable accommodations. You should offer any type of workable accommodation and let the employee/customer/visitor say no or offer a different solution. If they offer an alternative, make sure you take a good look at whether it will work. Consider making clear that you are always willing to keep talking about alternatives, like Hurley Medical Center did in this case.
Make an individualized determination.
Hurley Medical Center did not bar all service animals, just Pistol, and only after it was clear he caused allergic reactions.
Additionally, Hurley Medical Center only barred Pistol from specific floors, not the entire hospital.
In considering accommodations, don't worry about setting a precedent — limit the decision to this person's request. Remember that the employee or customer is not entitled to their desired accommodation, just a reasonable one that enables them to perform their duties/access your services. In many instances, there will not be a bright line; it will be a judgment call based on all the facts and circumstances.
Service animals will generally be allowed.
Although Hurley Medical Center prevailed in this matter, remember that service animals — limited to dogs — are generally going to be a reasonable accommodation. But the service dog must be kept under control and generally harnessed, leashed, or tethered. Per the ADA guidance for service animals:[4]
Under the ADA, State and local governments, businesses, and nonprofit organizations that serve the public generally must allow service animals to accompany people with disabilities in all areas of the facility where the public is allowed to go. ... Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility ... they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.
The Bennett case has a good discussion on the interactive process and individualized actions the hospital took to try and accommodate Bennett with a service animal. In the unique setting of a hospital, safety concerns were the priority, but the trial court's opinion will undergo the appellate court's review.
Keith S. Anderson and Anne R. Yuengert are partners at Bradley Arant Boult Cummings LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Bennett v. Hurley Medical Center
, Case No. 2:21-cv-10471-PDB-DRG, ECF No. 20, 2023 WL 319925 (E.D. Mich. Jan. 19, 2023).[2] 28 C.F.R. §35.136. https://www.govinfo.gov/content/pkg/CFR-2011-title28-vol1/pdf/CFR-2011-title28-vol1-sec35-136.pdf.
[3] United States Court of Appeals for the Sixth Circuit, Appeal No. 23-1162.
[4] https://www.ada.gov/resources/service-animals-2010-requirements/.
