The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
Drummond Woodsum partners with the New Hampshire Municipal Association to provide a free Employment Law Hotline service, through which we provide general legal advice to NHMA members. We receive a number of recurring inquiries through the hotline and have established a running series in which we periodically use the HR Report to address a hot issue. Recently, there has been an uptick in questions regarding the definition of hours worked, some of which you will find below.
Question: A Town employee has requested to bring their service animal to work, does the Town have to agree?
Answer: When a Town or City is assessing whether it must allow a service animal onto its premises, the answer may depend on who is making the re uest: a member of the general public attempting to access local government services or an employee in the workplace. While Title II of the Americans
with Disabilities Act (ADA) requires service animals to be allowed in all areas where the public has access to state and local government services, Title I of the ADA, which regulates employment, does not include a specific reference to service animals. Instead, Title I obligates employers to provide “reasonable accommodations” for employees with disabilities, unless to do so would constitute an undue hardship.
Therefore, an employee with a disability does not have an automatic right to have their service animal in the workplace. Instead, the employer and the employee must engage in the “interactive process” to determine whether allowing a service animal to accompany the employee could be a reasonable accommodation. Therefore, municipalities must analyze requests for a service animal differently depending on the circumstances.
When a member of the public requests to bring their service animal into a government facility:
Service animals can accompany their handler to any public facility, subject only to the same conditions and limitations that apply to the general public.
Under Title II and III of the ADA, a service animal may only be a dog or miniature horse and NH law (RSA 167-D) only covers dogs. This service animal must be trained to do work or perform tasks for the benefit of a person with a disability. The specific “work” or “task” that the animal is trained to perform for the individual must be related to their disability (physical, sensory, psychiatric, intellectual or other). An animal that only provides emotional support, comfort, or companionship simply by being present is not a “service animal.” In order to assess whether a dog/miniature service animal, the municipality may only ask the following two questions:
1)Is the service animal required because of a disability?
2)What work or task(s) is the service animal trained to perform? [Note: if the handler cannot identify what the specific work or task is, the animal likely does not qualify as a “service animal” under the ADA.]
Importantly, the municipality may not ask the above questions if it is readily apparent that the animal is trained to do work or perform tasks for an individual with a disability. Nor can the municipality ask questions about the nature of the handler’s disability, require documentation concerning the animal’s training, or require the animal to wear any particular vest, ID, or harness.
The animal must be “under control” by the handler at all times in a public place. Therefore, if an individual is requesting to bring a service animal to the municipality’s facility in order to access government services in their private capacity, the Town should follow this analysis, even if the individual is otherwise a Town employee.
When a municipal employee requests to bring their service animal into the workplace:
Under Title I of the ADA, employers are required to provide reasonable accommodations to employees with a disabilities, unless to do so would constitute an undue hardship. A reasonable accommodation is a change in the work environment, or a change in the way things at the work environment are ordinarily done, that enable an individual with disabilities to perform the essential functions of their job or enjoy the same benefits and privileges
of employment that are enjoyed by similarly situated employees (such as training opportunities, facilities, employee services, etc.). In order to assess whether a reasonable accommodation exists that would allow the employee to perform the essential functions of their role, the employer and employee must engage in a cooperative “interactive process” to assess potential reasonable accommodations.
As an initial matter, unlike Title II and III, which limits service animals to dogs and miniature horses, Title I does not specifically identify which, if any, animals may be considered a reasonable accommodation. Therefore, if an employee requests to bring either a service animal or an emotional support/comfort animal to work as a disability-related accommodation, an employer should engage in the interactive process to discuss the employee’s disability-related restrictions and potential accommodations. There are four basic steps to the interactive process:
1. Identify the essential functions, rather than the marginal functions, of the position.
2. Request information from the employee about their disability related functional limitations. This request could include a request for information from the employee’s health care provider.
3. Compare the essential functions of the position with the employee’s identified disability-related functional limitations and engage in a conversation with the employee to identify possible accommodations that would enable the employee to perform the essential functions of their role.
4. Of those potential accommodations that would enable the employee to perform their essential functions, select the accommodation to provide. This may or may not include allowing the requested animal to accompany the employee. While the employee can express a preference, ultimately the employer may decide on which accommodation to provide so long as the selected accommodation enables the employee to perform their essential functions.
Employers are encouraged to reach out to counsel if an employee disagrees with a proposed accommodation or if the employer intends to deny a request for accommodation all together.
This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & Mac-Mahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.