Wednesday, May 12, 2010

Battle of the accommodations

Almost a month ago, I wrote about how businesses should go about opening their doors to employees’ pets. At the time, I flagged potential ADA issues as one possible risk to having a pet-friendly workplace:

If an employee is allergic to animals, pet owners must understand that they may have to leave their animals at home as a reasonable accommodation. Other possible accommodations include creating sufficient separation between the allergic employee and the pet, segregating the pet to a specific part of the facility, or improving ventilation. Ignoring the pleas of an allergic employee, though, will open you up to potential ADA liability.
In response to my post, Stephanie Thomas, who follow each other on Twitter, asked the following question:

I dismissed it as an academic question. Perhaps I was being too hasty. Yesterday, Walter Olson’s Overlawyered brought us a story that illustrates this exact problem. According to an article by Steven Greenhouse in the May 10 New York Times, the city of Indianapolis has gotten itself into trouble with the EEOC for allowing a disabled employee to bring a service dog into work that caused a co-worker to have an asthema attack. From Mr Greenhouse’s story:
On the first day Ms. Kysel took Penny to work, one of her co-workers suffered an asthma attack because she is allergic to dogs. That afternoon Ms. Kysel was stunned when her boss told her that she could no longer take the dog to work, or if she felt she could not report to work without Penny, she could go on indefinite unpaid leave…. Ms. Kysel filed a complaint with the Equal Employment Opportunity Commission, asserting that her employer had discriminated against her by failing to accommodate her disability.
According to the EEOC (as quoted by Mr. Greenhouse):
When you have two people with disabilities … you don’t treat one as inherently more important than the other. What the employer has to do is work out some sort of balance between the accommodations needed.
In other words, not even the EEOC knows how to handle this perplexing situation. The lesson for employers is two-fold: 1) employment law is the land where bizarre happens; and 2) when in doubt, call your lawyer. We may not know the answer, but we can at least give you the peace of mind that you’re not totally crazy in not knowing what to do.