New Jersey lawyer focusing on special education law and employment law


Accommodating Service Animals

Now that 2009 has come and gone, I look through my files of cases and try to determine the most interesting service animal case I’ve come across this year. Cases involving service animals in the schools or various exotic creatures as service animals such as monkeys are certainly interesting; but, in my view, nothing comes close to McDonald v. Department of Environmental Quality, which, in my opinion, may very well be the most significant service animal case of 2009.

This Montana case is about whether an employer is legally obligated to “accommodate service animals.”

This unique case resulted in a surprising outcome, perhaps in a way that no disability rights attorney or advocate could have predicted. Equally surprising is the fact that this case has gotten scant discussion in the blogosphere. (The only two I found were this one and that one.) I hope my readers will agree that this case merits discussion.

Let’s look at what happened in this case.

Janelle McDonald has a leg injury that makes it difficult for her to walk up the stairs, walk long distances, or walk on concrete. McDonald also suffers from various psychological disorders, including “chronic depression and disassociative identity disorder.” McDonald’s service dog is an Australian Shepherd named Bess who has been trained to provide physical support whenever McDonald needs to stand or walk. In addition, when McDonald experiences a psychological episode, Bess provides McDonald “tactile stimulation in the event of a dissociative episode” and brings McDonald “back into reality.”

McDonald’s office was located in a carpeted room. But the hallways leading to the restroom, elevator, meeting rooms, and building entrance/exit were tiled. McDonald alleged that Bess had “difficulty maintaining traction on the tile floors” and “slipped on these floors repeatedly.”

McDonald tried training Bess to maintain traction on the tiles. She also tried fitting Bess with boots so that Bess would not slip. Nothing seemed to work: Bess kept slipping and subsequently injured her shoulders, neck, and chin. Over a period of 17 months, McDonald repeatedly requested that her employer install non-skid floor coverings to prevent Bess from slipping any more. Soon, Bess had injured herself to a point where she could no longer work as a service dog. Bess retired, and McDonald found employment elsewhere. McDonald’s employer never installed the non-skid floor coverings or carpeting that McDonald requested.

McDonald filed a complaint against her employer. In essence, McDonald argued that her request for a non-skid floor covering was a reasonable accommodation and that the failure to provide the non-skid floor covering violated state law and the Americans with Disabilities Act.

The Supreme Court of Montana held that McDonald’s employer was legally obligated to install the non-skid flooring. In the court’s opinon, the non-skid flooring accommodation was not for Bess–rather, the accommodation was for McDonald because she depended on Bess. Therefore, the non-skid flooring was necessary “to enable McDonald to perform her job duties.”

The court drew an ingenious analogy:

Requiring an employer to provide a nonskid floor surface so that an employee may use her service animal to move freely about the building is analogous to requiring an employer to provide a ramp or widen a door so that an employee may use his wheelchair to travel from one part of the building to another. When an employer does the latter (e.g., widens a door), it is an accommodation to the employee using the wheelchair, not to the wheelchair itself. Likewise here, installation of runners or carpeting would have been an accommodation to McDonald, not Bess.

The court went on to say:

[T]he duty to make reasonable accommodations does not end with allowing the assistive device through the front door. It also requires the employer to address any barriers to the employee’s ability to actually use that device effectively in the workplace. We conclude that this includes modifying a floor surface . . .

The McDonald case is also interesting for other reasons that I have not covered here. I encourage disability rights attorneys and advocates to read the decision in its entirety and pay close attention to the arguments that McDonald’s employer raised and how the court dealt with those arguments. This case contains language that is persuasive and may have widespread implications outside of Montana.

In my opinion, McDonald v. Department of Environmental Quality is the most interesting (and perhaps the most significant) service animal case of 2009.

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