Most of us know that when an employee or visitor to a place of public accommodation requests a reasonable accommodation, the ADA requires an interactive process to make an individualized determination. 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? In Bennett v. Hurley Medical Center, on federal just says “not always.”
A Nursing Student and Her Service Dog
Mia Bennett was a nursing student intern assigned to do her clinical work at the Hurley Medical Center in Michigan. As a nursing intern, she followed doctors and nurses making their rounds of patients’ rooms, particularly on floors 7E and 9E of the hospital. Bennett suffered from generalized anxiety disorder with a history of panic attacks (which could last for over an hour and could come on quickly with little to no warning). Bennett requested that her Corgi service dog, Pistol, be allowed to accompany her on her nursing rotations to assist in case she had a panic attack. Bennett had trained Pistol to detect anxious behaviors and signal her to take her medication to stop a panic attack before she could recognize it. Since employing Pistol, Bennett experienced panic attacks “drastically” less often.
Shortly before her initial rotation began, Bennett sent a request to HR for the accommodation of allowing Pistol to accompany her on her rotations. After HR conferred with legal counsel, Hurley granted Bennett’s accommodation request. In fact, Hurley had a rather robust policy allowing 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.”
On Bennett’s first day of rounds with Pistol, employees and patients on Floor 7E had allergic reactions to Pistol’s presence. Hurley’s HR department then reevaluated the accommodation, talked several times with Bennett, and ultimately determined that it could not allow the dog on the floors where Bennett’s training rounds took place. Hurley offered an alternative accommodation: to crate Pistol on a different floor during patient care timeframes and allow for necessary breaks, concluding that they “remain open to continued dialogue on this matter.” Hurley and Bennett talked about 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 was not an option because patients sometimes came in unconscious). Hurley went with the option of crating Pistol on a different floor and offered extra tutoring to Bennett for any rounds that she missed because of breaks spent with Pistol. Bennett later contended that tutoring could not “replicate the patient experience” and did her rotation without Pistol.
Bennett then 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 Act. After discovery concluded, Hurley filed for summary judgment.
ADA, Reasonable Accommodation, and Service Animals
Whether you are under Title I (Employment) or Title II (Public Accommodations), there are two general claims under the ADA: (1) intentional discrimination and (2) failure to provide a reasonable accommodation. The ADA requires an employer to engage in an interactive process with the employee in determining the feasibility of a reasonable accommodation. According to the court, Title II also requires this interactive process.
The Department of Justice’s “general rule” is that the use of service animals is reasonable as an accommodation under the ADA unless one of four exceptions apply:
Granting access would fundamentally alter the nature of the program;
The animal poses a direct threat to the health and safety of others;
The animal is out of control; or
The animal is not housebroken.
Hurley made multiple arguments for summary judgment, but the district judge focused on only one: Was Pistol a direct threat to the health and safety of others? 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 met this standard.
First, Hurley let Bennett bring Pistol, and it didn’t go well. Pistol’s presence actually caused allergic reactions from staff and patients. One staff member’s allergic reaction was so strong that she had to seek medical care and was out for two days. One patient began having an allergic reaction, and Pistol was never even in the room. Patients on one of the floors were immunocompromised and particularly in need of protection. The court found that Hurley based its decision on actual, not speculative or generalized, risks.
Second, Hurley complied with its obligations to engage in the ADA’s interactive process and make an individualized assessment. Hurley had numerous communications about accommodation options – with Bennett, with Bennett’s advocates, and with medical professionals.
Finally, Hurley only barred Pistol from floors 7E and 9E but said Bennett could crate the dog on the 8th floor and take breaks as necessary. Bennett rejected that option and, apparently, completed her training without Pistol.
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 “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 of floors 7 and 9,” there are some lessons for all of us:
Don’t reject a request 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. Hurley’s initial decision to grant the accommodation provided real data on which to make a later decision to deny it. Think about whether you can “test drive” an accommodation.
Engage in the interactive process. All of your communications 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. Ending with an offered accommodation and an indication that you are willing to keep talking about alternatives (like Hurley did) is really helpful.
Make an individualized determination. Hurley did not bar all service animals, just Pistol, and only after it was clear he caused allergic reactions. Additionally, Hurley only barred Pistol from specific floors. In considering accommodations, don’t worry about setting a precedent—limit the decision to this person’s request.
The Bennett case has a good discussion on the interactive process and individualized actions the hospital took to try and accommodate Bennett, and in the unique setting of a hospital, safety concerns were the priority.