iWhat accommodations are reasonable under the ADA? Employers are required to provide modifications or adjustments that enable a job applicant to be considered for a position. Beyond the application process, employers must also make modifications to the work environment so that a disabled individual can perform the essential functions of the position. In some cases, the answer is simple, or at least easier.
But what about accommodations that are not about performing essential functions? The ADA also allows employees to seek accommodations designed to help them enjoy the benefits of employment in the same way as other similarly situated employees. These benefits and privileges of employment cases can present tough questions for even the most dogged employers.
Enter the Eighth Circuit Court of Appeals. After making some waves last year when it held that an employer was not required to accommodate a service dog for an employee suffering from PTSD and migraines, the Eighth Circuit has doubled down, holding once again in Howard v. City of Sedalia that an employer is not required to accommodate a medical service dog for a diabetic employee when that employee cannot tie the use of her service dog to an employer-sponsored or employer-provided benefit.
So, what exactly is the Eighth Circuit’s doggone problem with service animals? The answer may help both employers and employees with even their pet-free accommodation requests.
Background
Samantha Howard is a pharmacist with Type 1 diabetes and hypoglycemic unawareness, which prevents her from knowing when her blood sugar has dropped to a dangerously low level. In March 2019, Howard began working as a pharmacist at a regional medical center operated by the City of Sedalia, Missouri. When Howard disclosed that she had diabetes, her supervisor allowed her to keep food and drink at her desk while working alone. At that time, Howard did not disclose that she was waiting on a diabetic-alert service dog that could detect an impending blood sugar drop to help prevent and mitigate emergencies.
In June 2020, a service dog, Corry, became available. Initially, Howard informed the medical center that she would need the dog by her side for six months to train the dog, but that she could eventually go to work without her dog. (This was not accurate as her lawyer later said Howard needed the dog with her all the time — not just for six months.) She requested that the medical center allow her to bring Corry to the main pharmacy, but not the sterile “clean room” or the “anteroom” where employees prepare for clean room activities.
The medical center denied this request because “such an action would not resolve the potential risks of contamination,” but continued to work with Howard to find a different accommodation. The parties could not reach an agreement, so Howard resigned on September 18, 2020. Even then, the medical center urged her to reconsider and proposed that a mutually-agreed-upon third party inspect the pharmacy and determine whether the service animal would pose a risk. Howard said she would not accept any accommodation other than bringing her service dog into the pharmacy.
She filed a lawsuit against the medical center alleging that their failure to make a reasonable accommodation violated the ADA. While Howard initially argued that her requested accommodation “would have enabled her to perform the essential functions of her position,” she failed to show that she was unable to perform her job without her service dog as she had received several good recommendations and raises without the dog being present. As a result, Howard and her counsel decided to limit the claims specifically to the theory that her accommodation was necessary to access the benefits and privileges of her employment.
After a four-day trial, the jury returned a verdict for Howard, awarding her $111,548.86 in compensatory and $18,451.14 in emotional damages. The medical center appealed.
Hopman: The Eighth Circuit’s Earlier Dog Decision
While Howard’s case proceeded to trial in the Western District of Missouri, the Eastern District of Arkansas heard a similar case, Hopman v. Union Pacific Railroad. Perry Hopman was a military veteran suffering from PTSD and migraines who worked as a train conductor. To help cope with his symptoms, Hopman purchased a service dog. The railroad granted some of Hopman’s requests for accommodations but denied his request to bring the dog onto moving freight trains while he worked. Hopman filed suit. Because Hopman was able to perform the essential functions of his job without the requested accommodation (he even earned a promotion during the litigation), Hopman’s ADA claim was limited to one based on “the denial of equal benefits and privileges of employment.”
The Eastern District of Arkansas found that Hopman did not identify a cognizable benefit or privilege of employment that he was entitled to as a reasonable accommodation. Essentially, the court rejected his claim that the “benefits and privileges of employment” included the freedom from mental or psychological pain.
The Eighth Circuit affirmed on slightly different grounds, holding that a benefit and privilege of employment under the ADA must still assist the individual in his or her performance of the duties of a particular job. As a result, while Hopman’s service dog may have helped with his symptoms, the service dog was not necessary for Hopman to do his job.
Howard: The Eighth Circuit Takes Another Bite
With that background in mind, the Eighth Circuit used Howard’s case as another vehicle to clarify the scope of the ADA. Starting with the ADA and the EEOC’s implementing regulations, the court noted that Congress intended, through the ADA, to prohibit employers from providing benefits to non-disabled employees while denying them for disabled employees. But if an adjustment or modification assists an employee throughout his or her daily activities, both on and off the job, it will be considered a personal item that the employer is not required to provide (i.e., an employer is not required to provide an employee with a prosthetic limb, wheelchair, or eyeglasses).
The Eighth Circuit reasoned that Howard could not show that she needed her service dog to perform the essential functions of her job. Nor could she show that the medical center was required to provide Howard with access to her service dog as a cognizable benefit or privilege of her employment merely because the service dog assisted her with her daily activities both on and off the job. Accordingly, the Eighth Circuit reversed the jury award, and remanded the case to the district court to enter judgment in the medical center’s favor.
Takeaways
While both Hopman and Howard focus on service animals, the holdings are also a good reminder to employers and employees that an employer is not necessarily required to provide an employee with accommodations that merely assist the employee during their daily activities. This is especially true where an employee has demonstrated that he or she is able to perform the essential functions of his or her position without the requested accommodation. While there are compelling reasons why an employer might choose to help its employees in those situations, there are very real limits on what accommodations an employer is required to provide in those scenarios. As always when navigating these issues, call your favorite employment lawyer.
