How can employers in the construction industry provide reasonable accommodations for an employee in the field where the potential for dangerous situations arise? To help answer the complex nature of these issues, AGC Houston Safety Committee member, Anthony Stergio, Andrews Myers, PC, addressed questions at the Safety Committee meeting.
“If someone comes to you (the employer) requesting to bring an emotional support animal (an animal that provides comfort or can determine when a medical condition, such as a seizure, will occur) to work, then you need to go through the interactive process of the ADA and determine the employee’s rights and the employee’s job duties,” he stated. The interactive process, under both the federal and state laws, takes into account the nature of the essential employee’s job functions and the employee’s limitations.
The ADA has several components: Title I covers employment relationships while Title III concerns public accommodations. For employers, this means that they must evaluate each individual request to bring a service animal to work, as potential reasonable accommodations.
A service animal is any dog (and in some cases, miniature horses) that is trained to perform specific tasks for the benefit of an individual with a physical or mental disability. Acceptable tasks include, picking up a dropped item, guiding a person, sending for help, or reminding a person to take medication. However, a dog that has not been trained in any specific task and provides only emotional support or comfort does not qualify as a service animal. These animals are “emotional support animals” and are not covered under the Public Accommodation Section of ADA. However, if the emotional support animal performs any tasks that help with post-traumatic stress disorder, such as reminding the individual to take medication or calming him/her during an onset of anxiety, this might be reasonable accommodation under the Employment Section of the ADA.
For the employer, questions to ask the individual include: exchanging information about the disability and work restrictions related to it; what specific tasks the service animal has been trained to do; identifying the potential reasonable accommodations that are needed; and reaching a determination allowing this animal at work is a reasonable accommodation.
Stergio explained: “You may ask questions such as ‛What should we do with the service dog on a jobsite?’; ‛Who will control the dog?’; ‛Is it necessary for you to have this dog at your side while you are doing your essential job functions of your job?’ As an employer, you need to determine if the animals on the job site will pose a direct threat to others and hinder job performance capabilities.” He underscored the need to understand if the service animal is capable of attacking others if it felt that the individual he is protecting is threatened.
“Typically, the individual who owns the service animal is responsible for maintaining its general well-being, feeding it, etc. The employer has a right to know that the animal is well trained and not unruly and will not be a threat to others or get in the way of the job operations.
“For an employer, it is important to consider what a reasonable request is and is not. Honestly, I think we all agree that bringing a miniature horse on a construction site is probably not the best idea!”
What it boils down to, according to Stergio, is to include in the employment policy requirements that if a service animal cannot help to perform the work duties, then it is discouraged for that specific job. “The ADA typically does not like iron-clad policies,” stated Stergio. “Essentially, your policies need to be flexible, regarding the nature of the job and especially where it concerns service animals. It depends on the nature of the work, the context of where the work is performed and the difficulty in accommodating the employee to work alongside the service animal.” Employers must make reasonable accommodations to allow the presence of the service animal unless to do so would cause an undue hardship.
In light of the job location, would an employer be required to build special ramps to accommodate the animal? “Again, this goes back to the employer creating reasonable accommodations for the employee,” he said. “If it poses a threat to others, including the animal, then it would be unreasonable to think that the animal should be able to follow the employee up a ladder, in confined spaces and be in a dangerous environment. It would also be potentially costly to build special ramps for the animal.” If this accommodation could pose liability issues, Stergio recommends contacting the project owner for feedback.
One attendee informed the group that the owner of a construction project did not want a service animal in a confined space because of the potential for a worker’s comp issue or negligence case, should the animal be harmed.
“The broader issue of access and the law is an important consideration for employers because the needs of the individual with the service dog are often weighed against potential adverse effects of the presence of the dog,” Stergio stressed. Under the ADA, employers need to be aware of and understand their legal obligations as well as the relevant state laws that are applicable regarding an employee with a disability and to ensure that co-workers are treated fairly when implementing accommodations.
FREQUENTLY ASKED QUESTIONS
What is a service animal?
Under the Americans with Disabilities Act - Title II and Title III - a service animal (for instance, a dog) that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.
What does "do work or perform tasks" mean?
The dog must be trained to take a specific action when needed to assist the person with a disability. For example, a person with diabetes may have a dog that is trained to alert him when his blood sugar reaches high or low levels. A person with depression may have a dog that is trained to remind her to take her medication. Or, a person who has epilepsy may have a dog that is trained to detect the onset of a seizure and then help the person remain safe during the seizure.
Are emotional support, therapy, comfort, or companion animals considered service animals under the ADA?
No. These terms are used to describe animals that provide comfort just by being with a person. Because they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA.
If a service animal is injured or killed on a jobsite due to moving equipment, a fall off of a structure or accidentally by a worker, who has the liability to care for or to replace the animal?
While the employee has primary responsibility for the care and control of a service animal that would not foreclose the possibilities of the employee looking to the employer (or another party) if the animal were injured or killed due to alleged negligence.
If someone's dog calms them when having an anxiety attack, does this qualify it as a service animal?
It depends. The ADA makes a distinction between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog's mere presence provides comfort, that would not be considered a service animal under the ADA.
Do service animals have to wear a vest or patch or special harness identifying them as service animals?
No. The ADA does not require service animals to wear a vest, ID tag, or specific harness.