Meeting of the Federal Exchange on Employment & Disability (FEED)
November 8, 2018
10 a.m. – Noon
U.S. Equal Employment Opportunity Commission
I. Opening Remarks and Introductions
Dexter Brooks, Director of Federal Sector Programs in the Office of Federal Operations at the U.S. Equal Employment Opportunity Commission (EEOC), opened the meeting by welcoming everyone and providing a short introduction to the Federal Exchange on Employment & Disability (FEED). He then introduced Michael Murray, Director of the Employer Policy Team at the Office of Disability Employment Policy (ODEP) at the U.S. Department of Labor.
Mr. Murray began by thanking his team and the Employer Assistance and Resource Network on Disability Inclusion (EARN) team for their work organizing the meeting. He then introduced the topic of the meeting, the use of service and emotional support animals in the federal workplace, and the members of the panel: Aaron Konopasky, Katie Wolfe, Linda Carter, Beth Loy and Tiffany Jolliff. He continued by sharing an anecdote about The Hersey Company and how it had hired an employee who is blind and uses a service animal. Shortly after the employee was hired, the company started allowing service animal training programs to utilize their facilities as training grounds. He said that Hershey found that they had higher productivity and lower turnover rates in locations where they instituted this program. Mr. Murray then turned the meeting back over to Mr. Brooks.
Mr. Brooks clarified that all of the panelists would give their presentations first and questions would be taken afterwards. He then introduced Mia Ives-Rublee, Confidential Advisor for the Office of Commissioner Feldblum at the EEOC, as the moderator of the panel.
Ms. Ives-Rublee introduced herself and mentioned that she is a service animal user and has always been interested in issues around service animals. She also talked about the work she does as a member of the Disability Policy Group, an interagency federal workgroup that addresses issues related to federal employees with disabilities, Federal Government policies related to these issues, how the Federal Government as a whole responds to them and how various individual agencies respond to them. She stated that one of the issues that the Workgroup is currently focusing on is service and emotional support animals in the federal workplace.
Ms. Ives-Rublee then introduced the panelists, beginning with Katie Wolfe, Special Litigation Counsel with the Disability Rights Section at the Department of Justice (DOJ) in the Civil Rights Division. She said that Katie has been with DOJ and focused on disability rights for 15 years. She then introduced Aaron Konopasky, Senior Attorney Advisor with the ADA/GINA Policy Division in the Office of Legal Counsel at EEOC. She stated that he has participated in the development of regulations under the ADA, the Age Discrimination in Employment Act (ADEA) and the Rehabilitation Act, as well as developed numerous policy documents and publications at the Commission. She then introduced Linda Carter Batiste, a Principle Consultant at the Job Accommodations Network (JAN) who specializes in the ADA and other disability related legislation. She stated that Linda has been with JAN since 1992 and is a member of JAN’s management team. She then introduced Beth Loy, who is also a Principle Consultant with JAN, serves on JAN’s management team and is a national researcher and speaker in the disability field. Lastly, she introduced Tiffany Jolliff, a Program Specialist with the Employer Team in ODEP who has worked at the Department of Labor for four years. Mia stated that Tiffany has handled guide dogs for 11 years, is passionate about service animal advocacy and is now working with her fourth guide dog, Pie. She then handed the floor to Katie Wolfe from DOJ.
II. Panelist Presentations
Ms. Wolfe began her presentation by stating that she would be discussing service animals in relation to Titles II and III of the ADA, which cover state and local government programs and services and public accommodations. She emphasized that the information she would be providing would not necessarily apply to service animals in the workplace context. She said that DOJ’s position is that the same non-employment rules apply to Section 504 of the Rehabilitation Act, as well as in the non-employment context.
Ms. Wolfe stated the basic rule under Titles II and III of the ADA is that a public entity or public accommodation, “shall modify its policies practices and procedures to allow individuals with disabilities to use their service animals” She clarified that service animals are allowed to go anywhere that the rest of the public can go. She informed the audience that the regulatory guidance to the rules in part 35 and part 36 of CFR 28 have very extensive information on the service animal rules in the ADA Amendments Act of 2010 (ADAAA). She said that DOJ receives more complaints about service animals than any other issue.
She proceeded to say that under the ADA, a service animal is defined as “a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability including a physical, psychiatric, sensory, intellectual or other mental disability.” She stated that in 2010 as part of the ADAAA, the definition of service animals was revised and limited the species of service animals to dogs. She said that prior to 2010, any animal could theoretically be a service animal.
Ms. Wolfe continued that the dog must be trained, but professional training is not required. She clarified that users can train the dog on their own, but that the dog must be trained to perform a task or do work that that is related to the person’s disability — that the task the dog performs must be something for the benefit of a person with a disability. She emphasized that the work or task piece of the ADA service dog definition distinguishes service dogs from emotional support animals. She then gave examples of tasks that service dogs perform, including guiding or way finding for people who are blind, alerting people who are deaf to sounds such as fire alarms, detecting the onset of a seizure for people with epilepsy, or retrieving items for people with mobility disabilities.
Ms. Wolfe then discussed the types of tasks that psychiatric service dogs perform. She said that they can help individuals with dissociative identity disorder to remain grounded, they can enter and examine an unfamiliar space and come back and signal that it is safe to enter for people with PTSD, and they can prevent or interrupt impulsive or disruptive behaviors for people with other types of psychiatric illnesses. She said that a service dog is expected to take consistent, independent action to alert the user based on a cue that is not provided by the handler.
She stated that in 2010, DOJ clarified its long-standing interpretation that the ADA does not cover emotional support or comfort dogs, meaning if the dog’s mere presence provides comfort, it’s not a service animal under DOJ regulations. She continued that a person cannot typically determine whether an animal is a service dog or emotional support dog just by seeing the person’s use of it.
Ms. Wolfe noted that there are a few restrictions in terms of permissible questions and documentation that a business owner or state or local government can ask a person using a service dog. She stated that under Titles II and III of the ADA, there are only two permissible questions that can be asked of a person using a service animal, which are: “Is this dog required because of a disability?” and “Is this dog a service animal?” She said that if the user says yes, the person may also ask: “What work or tasks does the dog perform for you?”
Ms. Wolfe clarified that if the disability is obvious, for example, if the person is blind and is using the dog as a guide dog, DOJ’s position is that the business owner or state or local government may not ask those questions and cannot ask for certification, a license or other documents for the service dog. She added that the DOJ does not recognize any documents sold online by any individual or organization as proof that a dog is a service animal. She then turned over the conversation to Aaron Konopasky from EEOC to talk about the use of service animals in an employment context.
Mr. Konopasky began by stating that, unlike DOJ, which has very specific regulations regarding service animals, the EEOC has not provided any regulations on service animals. He also stated that neither Section 501 of the Rehabilitation Act nor Title I of the ADA (which addresses employment) say anything about service animals. He added that there is one sentence in a 1991 technical assistance manual which says that modifying a no animal policy to allow a guide dog for a blind employee is a form of reasonable accommodation, which points to the fact that asking to use a service or emotional support animal in the workplace can be a form of reasonable accommodation.
Mr. Konopasky emphasized that you should think of service animals in the workplace as reasonable accommodations and apply all of the regular reasonable accommodation processes when an employ requests to use a service or emotional support animal. He also stated that Section 501 not only requires nondiscrimination on the basis of disability, which includes provision of reasonable accommodations as part of the nondiscrimination obligations, but also requires affirmative action for individuals with disabilities. He continued by saying that the Federal Government is required under Section 501 to go above and beyond what Title I of the ADA requires. He stated that Section 501 requires agencies to adopt policies and procedures that are going to aid in the retention and hiring of people with disabilities. He encouraged agencies with generous service animal policies to include those in their 501 plans as part of their efforts to recruit, hire and retain federal workers with disabilities.
He then proceeded to talk about species of service animals. He stated that the EEOC has never imposed any kind of restrictions on service or emotional support animals in the workplace or as reasonable accommodations. He stated that while in the DOJ context, service animals are limited to dogs, there’s no such express limitation in Title I of the ADA or under Section 501. He mentioned a case called Mennon v. U.S. Postal Service (?) which dealt with a Postal Service employee who wanted to bring a comfort bird into the office. He said that the final decision of the case was that the individual was not allowed to bring the bird, but it was not because of the species of the animal, but rather because the person refused to cage the bird and it disrupted the work environment. Mr. Konopasky said that employers can’t decide or assume beforehand that an animal would not be suitable as a service animal in the work environment and there’s no list you can refer to that says definitively that the animal has to be a particular species.
Mr. Konopasky then discussed whether a service or emotional support animal must perform a service related to a person’s disability. He stated that there’s no requirement in Title I of the ADA or in Section 501 that the animal has to be able to perform a task, and the interactive accommodations process does not include establishing that the animal performs a specific task that’s related to a disability. He said that there have been no federal sector appellate decisions that have definitively addressed this issue. Aaron also emphasized that although there is no certification or professional training requirement for the animal to be used in a federal workplace, it must behave itself and not be disruptive to other workers or the workplace in general, so, for example, it should obviously be housebroken and not behaving aggressively toward people.
Mr. Konopasky proceeded to talk about the type of documentation employers can ask for during the interactive accommodations process. He stated that employers can request medical documentation, establishing that the person has a disability, if the person’s disability is not immediately obvious. He specified that if the disability is obvious, for example, if the person is blind, the agency cannot ask for documentation.
He said that in the case of psychiatric disabilities, the documentation would be a letter from a psychiatrist or therapist saying that the individual has a mental health condition. He reminded the audience that the definition of disability since the ADAAA has been very broad. He also cautioned employers that the documentation an individual provides does not have to be extensive. He summarized that requesting documentation is about verifying that the person has a diagnosis. He continued that the documentation simply must establish the need for an accommodation, and specifically that the accommodation is to use a service or emotional support animal. He said that because the concept of service and emotional support animals is fairly new, the medical community might not have a system to generate the type of documentation that the agency is looking for. However, he said that if a doctor knows that the person is asking for a service or emotional support animal as a reasonable accommodation, and that they feel it would be helpful for the person’s symptoms, they will likely be open to providing documentation supporting the use of the animal as a reasonable accommodation.
Mr. Konopasky then addresses the need for accommodation. He said that sometimes when the agency asks for documentation showing that the animal is needed because of a disability, the thought is that the animal has to be helping the person specifically perform job functions. He clarified that if the person needs the animal in order to stay in the workplace, be productive, do their job or enjoy equal access to the benefits and privileges of employment, then that’s enough to establish that the person needs the accommodation because of the disability. He said that there does not have to be a tight connection between an individual’s accommodation and their essential job functions.
Mr. Konopasky cited Struthers v. Department of the Navy as an example of his previous statement. In that case, the complainant asked to bring her dog to work to manage depression and anxiety. He said that it turned out that in this case, the complainant’s anxiety triggers, which would cause the need for the animal (things like being in crowds and around strangers), didn’t happen in the workplace. So it was determined that bringing an animal into the workplace wasn’t required because the workplace was not a place that triggered the employee’s symptoms. He also said that in the interactive reasonable accommodations process context there are no rules about asking questions, meaning agencies can ask whatever questions they feel are necessary to determine the need to use an animal as a reasonable accommodation, including whether the animal was certified or trained by a training organization or if the animal can demonstrate that it performs a particular task.
He then discussed alternative accommodations. He noted that agencies can explore the possibility of alternative accommodations and if effective, they can substitute that accommodation, meaning the accommodation that is chosen does not have to be the number one choice of the person requesting accommodations. On the other hand, Aaron warned that agencies should be careful not to interfere with the medical treatment of its employees. He provided examples of when it might not be appropriate for agencies to suggest alternative accommodations, such as suggesting a medication for the employee instead of therapy or that they use a prosthesis instead of a wheelchair. He cautioned that currently animals are regarded as a treatment method and recommended that agencies, in order to be safe from a 501 compliance point of view, shouldn’t suggest alternative accommodations unless there is really a need to do so.
Mr. Konopasky continued by addressing concerns agencies may have about the impact having a service or emotional support animal in the workplace may have on others. He clarified that if someone else in the workplace has a disability that the service animal interferes with, for example, if someone is severely allergic to dogs or has a diagnosed phobia, then the agency must provide a reasonable accommodation for that other person as well. He reminded the audience that the next step in the interactive accommodations process would be to analyze the issue like any other reasonable accommodation request, including the undue hardship analysis. He said that the agency should analyze whether the presence of the animal in the workplace is going to cause an undue hardship, for example, if the animal is disruptive by not being housebroken, barking all the time or being a direct threat to others. In that case, he said that the agency would be justified in declaring it an undue hardship and not allowing the animal into the workplace. He stated that the most common way to figure out if the animal is going to be an undue hardship is by doing a trial run. He cautioned that agencies should not risk excluding animals that might not pose an undue hardship since they might be liable from a 501 compliance point of view. He then concluded his presentation.
Mr. Brooks thanked Mr. Konopasky and then handed the floor to the JAN consultants.
Linda Carter Batiste began by providing background on JAN, explaining that its mission is to provide no cost technical assistance on job accommodations and the employment provisions of the ADA (Title I). She then discussed practical suggestions from JAN on dealing with accommodation issues related to service animals. She said JAN receives many questions related to service animals, a lot of which are about allergies and phobias. She said often the employer is just afraid someone might be allergic or might have a phobia of the service animal, without any concrete evidence that this is the case. She suggested that a starting point for employers should be to determine if there really is some sort of problem that might be caused by the service animal.
Mrs. Carter Batiste discussed a specific example of a request for assistance that JAN received. An accountant had asked to bring a service animal to work, but one of the accountant’s team members was allergic to animals. The employer wanted to know if he could deny the request because of the coworker’s allergy. JAN suggested that it might be possible to accommodation both the accountant and his team member through ideas like remote work or holding meetings electronically, seeing if the account would agree to attend face to face meetings without the animal, etc. She emphasized that the employer should try to accommodate everyone involved.
Mrs. Carter Batiste then moved on to the issue of cleaning up after a service animal. She stated that the employee who uses a service animal is responsible for the care and clean-up of the animal. She said that sometimes the employee could seek an accommodation in order to do this task, such as a special tool that could assist someone with a mobility disability in picking up the animal’s waste, or perhaps ask another employee (such as a groundskeeper or janitorial staff) to assist with the task.
Mrs. Carter Batiste’s colleague Beth Loy then proceeded discussed some of the questions JAN has received regarding service or emotional support animals in the workplace. She mentioned that sometimes employers want to know if service animals can be restricted from certain areas of the workplace. She cited the example of a cashier in the food service industry who wanted to use a service or emotional support animal. JAN’s advice to employers with issues similar to this is to check their specific workplace regulations, for example, the Food Code.
Ms. Loy emphasized that employers should make sure that there really is a problem before they deny the accommodation request, and that they should consider those requests on a case by case basis. She also mentioned that service animals may help employees with issues that the employer doesn’t directly see, such as commuting to work. She also suggested employers take a case by case approach regarding requests to train service or emotional animals at the workplace. In general, she encouraged employers to not make assumptions about the service animal and its impact on others and only consider the facts of the particular request. She also suggested that employers move forward with the request just like with any other accommodation and customize the accommodation to work for everyone.
Ms. Loy continued her presentation by discussing documentation or certifications for service or emotional support animals. She stated that it can sometimes be difficult to know what’s real and what isn’t, because some businesses sell fake certificates and there is often not a way to determine what is authentic. She recommended a trial period or a demonstration of the animal’s abilities as the best way to determine if a service or emotional support animal can perform its duties and is fit to be in the workplace. She also clarified that employers can accept any documentation for the service animals that they are comfortable with.
Ms. Loy proceeded to address the question of liability, meaning who is responsible when an animal gets hurt or the animal hurts someone else. She suggested that employers check their liability policy, if they carry one, or check with workers’ compensation to see what their liability might be. She also suggested that employers don’t treat an employee with a service animal any differently than other employees. She cited the example of someone in a parking lot crashing into another car and stated that if employers generally take responsibility for accidents in the work environment, they shouldn’t treat a situation involving a service animal any differently than they would other accidents.
Ms. Loy then stated that it is important to try to educate employees about the use of service or emotional support animals, either by having the employee who uses the animal talk to their coworkers, or if the employee doesn’t feel comfortable doing that, bringing in someone from outside the organization (for example, a representative from a service dog training organization) to do the educating. She said that in a situation where the employee does not want to address the topic of the service animal with their coworkers, the employer can simply instruct other employees that the dog is working and to stay away from the dog, although she noted that this approach can be less effective than educating people about the service animal. She encouraged employers to talk to the service animal handler if the animal is disruptive to the work environment. She also noted that the best way to resolve questions about the animal with the employer’s customers, clients, patients, etc. in the work environment is to have a discussion with the employee. She concluded by referring the audience to JAN’s service animals topic page on AskJAN.org.
Ms. Ives-Rublee then thanked the JAN consultants for their presentations and gave the floor to Tiffany Jolliff from DOL to talk about service animals from an employee’s perspective. She began by asking Tiffany what makes a service animal helpful for her in her personal experience.
Ms. Jolliff began by saying that she found using a service animal to be beneficial in large part after moving to Washington, DC. She said that a service animal provides her with more safety, confidence and efficiency than just using a cane, especially in the places like the Metro. She agreed with Ms. Ives-Rublee’s statement that there are a lot of benefits to service animals that others may not immediately notice. She proceeded to say that her service dog, Pie, is very labor focused and that as a service animal handler she tries to educate both the public and her coworkers that the best way to interact with her service animal is not to interact with him.
Ms. Ives-Rublee then asked Ms. Jolliff if she had faced any issues when bringing her service animal into the workplace.
Ms. Jolliff said that in terms of policy, she has not faced any issues. She said that she previously worked for a nonprofit organization with a focus on blindness and now she works at ODEP. She stated that at the nonprofit organization, they had a policy where employees could get two weeks of paid leave if they needed to train a new guide dog. She added that at the Department of Labor, they have a policy for all employees that provides employees with 40 hours every fiscal year to do personal training. She stated that she used that leave time twice in the past calendar year to train her dogs. She stated that her third dog she had did not work out and that Pie is her fourth service dog. She said that at ODEP her supervisors let her send out an email introducing her guide dog and some rules on how to approach someone with a service animal. She emphasized to the audience that guide dogs present for their handlers and that that should be respected. She also expressed that she would like people to engage with her about more than just her service dog. She said that in the end, it’s all about education and just making sure that everybody is comfortable with each other.
Ms. Ives-Rublee then asked about processes Ms. Jolliff had to go through in order to ask for this reasonable accommodation.
Ms. Jolliff said that it has been a very informal process for her, which might not be the case with other employers. She stated her need for a dog to her employer and then worked with them to arrange for her to talk leave to train the dog. She stated that she tries to be as accommodating as possible when needing to take leave because she wants to make sure that her work duties are covered during her absence. She said that the accommodating attitude of her supervisors at DOL made her feel included and respected as an employee.
Ms. Ives-Rublee then directed a question to Ms. Wolfe about how Titles II and III of the ADA may affect an employee. Ms. Wolfe stated that an employee’s travel might be affected, for example when they get denied access by a ridesharing service or when they have to deal with the Air Carrier Access Act and other rules related to air travel. She also said that employees might be faced with extra costs and needing to provide documentation for their service animal at hotels. She encouraged animal handlers to be well versed in the laws that apply to them and their animal.
Ms. Ives-Rublee then suggested that service animal handlers inform their managers that they might need extra time to get to locations. She then asked Ms. Wolfe if she had any suggestions on how to best interact with and integrate an employee who uses a service animal. Ms. Wolfe suggested that people should treat service animal handlers like any other employee. She also mentioned that some federal agencies have provided a relief area for service animals near their office, which can be very helpful.
III. Questions and Answers
Ms. Ives-Rublee then thanked the panelists and proceeded to the question and answer portion of the meeting. The first question she asked was, “Is there any law or regulation that prevents the agency from asking if the animal performs a specific task related to a disability need?”
One of the panelists stated that no, there is no preventing the agency from asking that question. The speaker cautioned though that if agencies want to ask that question in the Title I context, they should ask it in a more general way, such as “How does the animal help with your disability?” The speaker stated that this is a more inclusive way to asking the question because some animals might be performing a non-task function.
Ms. Ives-Rublee then asked, “Can the employee use annual leave or sick leave when dealing with a service animal that’s ill or can they only use annual leave?”
One of the panelists answered that it is up to how the sick leave or annual leave policies of that particular agency are written. The speaker also said that leave could be provided as a reasonable accommodation, but complications might arise as to whether the leave is paid or not.
An audience member who works for the Peace Corps then asked about how to handle sending volunteers who have emotional support or service animals into different countries with their animals. The audience member specified that the other countries have asked for some type of documentation that states that U.S. law/policy requires the presence of the animal.
Mr. Brooks suggested something like a Status of Forces agreement used by the Department of Defense, where the agency would negotiate with the host country about the parameters of the state of your employees.
An audience member who works for the Department of Veterans Affairs (VA) asked about allowing service animals and emotional support animals in VA facilities.
Ms. Wolfe replied that Section 504 regulations for programs and services would apply. She stated that the DOJ’s position is that 504 regulations are consistent with the ADA, which is very clear that service dogs can generally go anywhere members of the public can go. She said that in terms of hospitals, the DOJ generally points to the CDC guidelines and healthcare settings rules, which restrict access only in the most sterile environments. She also noted that the ADA and DOJ regulations don’t recognize emotional support animals, however, but people often mislabel service animals as emotional support or comfort animals.
An audience member then asked the panelists to elaborate on the topic of phobias.
A panelist stated that a special phobia counts as a disability under the ADA and can be diagnosed by a psychiatrist or psychologist.
An audience member asked about what to do in situations where an employee might not need an accommodation every day during work, but might encounter situations during travel, conferences or their commute where they would need to use the animal.
A panelist said that the employer would have to consider the possibility of allowing a service animal, or other accommodation, in situations where it’s required. The speaker mentioned that in certain situations where there’s a connection between a disability and the situations that the employee might encounter, then a request for an accommodation would be legitimate.
Ms. Wolfe stated that it should be taken into consideration that the separation of a service dog and its handler for the 8-10 hours a day the person is at work could be detrimental to the dog’s ability to do its job when it’s with its handler. She also noted that the very strict connection between the disability related task and the job duties can be somewhat artificial. She said that agencies should take into account the connection between the dog and the user.
Another panelist added that if the employee needs to commute in order to get to work and they need the accommodation for the commute, the employer might be required to allow that accommodation. He stated that if the employee can demonstrate that the accommodation is needed or that it would be helpful, then it would be allowed. The speaker continued by saying that the employer might need to consider not only Title I and Title II, but also Title III of the ADA. The speaker added that the employer might need to be a creative in deciding on meeting locations, choosing restaurants to attend as a work group and for other events that are external to the immediate work environment.
Ms. Jolliff was then asked if there is a process that employees have to go through at the Department of Labor when they’re traveling that requires them to provide advance notice that they have a service animal when booking travel.
Ms. Jolliff stated that she had not done any official DOL travel with a service animal, but for personal travel, she does not disclose that she has a service animal ahead of time because if she did so, she may not be able to change her reservation online if her plans change.
Ms. Ives-Rublee added that she also does not disclose that she has a service animal when booking a hotel because she finds it easier to communicate with the hotel staff in person. She stated that she does, however, disclose when booking air travel because of new airline regulations related to flying with service animals. She explained that each individual is going to be different in how they want to handle disclosure when making travel arrangements. She also noted that airlines are getting stricter with how many animals they allow on flights and are imposing other restrictions which will probably cause her to disclose more with air travel in the future.
IV. Closing Remarks
Mr. Brooks then concluded the presentation and thanked the panel and Ms. Ives-Rublee. He then gave the floor to Brett Sheats to close the meeting.
Brett Sheats, National Project Director for EARN, thanked the panelists and referred the audience to AskJAN.org for more resources on service animals. Brett encouraged the audience to email him at Bsheats@viscardicenter.org or Akinyemi Banjo at email@example.com if they have suggestions for future meeting topics. He thanked the EEOC for hosting and closed the meeting.
[END OF MEETING]