Q&A: How to respond when an applicant has a service animal

A Nevada employer has an upcoming interview with a candidate who stated she has a service dog that must be with her 24/7. How should the company respond?  What questions are legal for the company to ask related to the service animal?

Bringing service animals to job interviews

Under the Americans with Disabilities Act (ADA), an employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless it can show undue hardship). Thus, individuals with disabilities who meet the initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job.

In many instances, employers will be unable to determine whether an individual needs reasonable accommodation to perform a job based solely on a request for accommodation during the application process. Even if an individual needs reasonable accommodation to perform the job, it may not be the same type or degree of accommodation that is needed for the application process. Thus, an employer should assess the need for accommodations for the application process separately from those that may be needed to perform the job.

Under federal law, for job applicants with disabilities who use service animals, there are several different options for the job interview. First, the applicant can notify the employer that they use a service animal and ask whether the service animal can be used during the job interview. Applicants should be prepared to provide medical documentation if the employer requests it; under the ADA, employers are allowed to require medical documentation when an applicant or employee requests an accommodation and the disability and/or need for accommodation is not obvious or previously documented.

Another option is to not use the service animal during the job interview. Some people need their service animal with them at all times, but others are able to be without the service animal for brief periods and opt to wait to talk with an employer about the use of the service animal until after a job offer is secured.

Under Nevada law, a job applicant must be allowed to bring a service animal to a job interview. Medical documentation should not be requested.

Employers often conduct interviews virtually, particularly during the first stages. However, if virtual interviews are to be conducted, they should be conducted consistently for all applicants for a job to avoid claims of discrimination.

Preemployment inquiries: Federal law

Under the ADA, an employer may not ask about the existence, nature, or severity of a disability and may not conduct a medical examination until after the employer has made the applicant a conditional job offer. However, questions about reasonable accommodation are allowed under limited circumstances such as when they know that an applicant has a disability (i.e., it is obvious or the applicant has voluntarily disclosed the information) and could reasonably believe that the applicant will need a reasonable accommodation to perform specific job functions (EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations).

If the applicant states a need for reasonable accommodation, the employer may inquire as to what type is being requested (29 CFR 1630.14(b)). For example, the employer may ask questions such as, “What will you need?” However, the employer may not ask questions about the applicant’s underlying condition. In addition, the employer may not ask questions that are unrelated to job functions, such as “Will you need reasonable accommodation to get to the cafeteria?” If the need for accommodation is not obvious, an employer may ask an applicant for documentation demonstrating that the condition is a covered disability and that the accommodation is necessary.

Under federal law, as this employer is in the beginning stages of interviewing this applicant/determining if they are the most qualified applicant for the job, this employer should only ask the employee about their relevant experience for the job and their ability to perform the job functions. They may ask what job functions the applicant needs the service animal in order to perform and how the animal assists her.

Preemployment inquiries: Nevada law

The law does not specifically prohibit an employer from making preemployment inquiries about protected characteristics. However, because such inquiries may deter individuals from applying for employment or may otherwise indicate possible intent to discriminate, the Nevada Equal Rights Commission has indicated that it will closely scrutinize such requests for information to make sure that the inquiry was made for a lawful purpose, rather than for a discriminatory one. Accordingly, an attorney should be consulted to address what questions this employer may lawfully ask under Nevada law.

Service animals: Federal law

Many employers are faced with a complicated balance between an individual employee’s needs, and the requirements of the workplace as a whole. While workplaces should almost always be able to accommodate service animals, there are certain situations in which their use can be denied. An accommodation need not be made if it can be categorized as a “direct threat” under the ADA, or a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”

Courts are inclined to narrow down the necessity for accommodation to the provision of certain benefits of employment and the ability to actually perform the job. For instance, courts have recently assessed the use of a service animal as a workplace accommodation. In Hopman v. Union Pac. R.R., 68 F.4th 394 (8th Cir. 2023), the plaintiff was a train conductor/engineer and military veteran looking to bring his service dog on the train with him as a reasonable accommodation to ameliorate the effects of post-traumatic stress disorder and migraine headaches.

The employer denied his request, explaining that a service dog would result in a direct threat to the health and safety of employees. The court held that the employer was not required to make this reasonable accommodation because:

“The obligation to make reasonable accommodation . . . does not extend to the provision of adjustments or modifications that are primarily for the personal benefit of the individual with a disability. Thus, if an adjustment or modification is job-related, e.g., specifically assists the individual in performing the duties of a particular job, it will be considered a type of reasonable accommodation. On the other hand, if an adjustment or modification assists the individual throughout his or her daily activities, on and off the job, it will be considered a personal item that the employer is not required to provide. Accordingly, an employer would generally not be required to provide an employee with a prosthetic limb, wheelchair, or eyeglasses.”

Similarly, in Howard v. City of Sedalia, Missouri, dba Bothwell Regional Health Center, 103 F.4th 536 (June 4, 2024), the Plaintiff was a pharmacist who had Type 1 diabetes. They obtained a diabetic alert service dog who could detect impending blood sugar drops to help manage their condition and requested to bring the dog into the main pharmacy area with them as they worked. This was subsequently denied due to concerns about risks of contamination. The parties could not agree on an alternative accommodation, the employee resigned and brought suit under the ADA. The 8th Circuit noted that the Plaintiff had successfully performed her job for a period of time without the use of a service animal and ruled that Plaintiff “failed to establish if [they] required the accommodation either to perform the essential functions of the job or to access the benefits and privileges of employment.” The plaintiff did not argue they could not perform the job, only that they could perform the job better with the utilization of an animal. The court ruled in favor of the employer that this was not a required accommodation.

Note, however, that these cases do not necessarily mean that an employer is not ever required to allow a service animal. An employer will want to engage in the interactive process with an employee. In doing so an employer will likely want to consider the following:

• Does an employee have a disability as defined by the ADA? If not, then a reasonable accommodation is not required.
• Are there specific essential work functions that an employee would have difficulty performing? If so, are these difficulties as a result of a disability? If the individual would have difficulty with job duties because of a disability, they are likely entitled to a reasonable accommodation.
• Will the requested accommodation enable an employee to perform a job function they would otherwise have difficulty with due to their disability? Or is the employee merely looking for assistance with daily activities?
• Is there an alternative accommodation (other than the service dog) that will enable an employee to perform job functions that they would have difficulty with?
• If denying a reasonable accommodation, can an employer show that one can not be provided absent undue hardship?

​​Service animals: Nevada law

Under Nevada law, it is an unlawful employment practice for an employer to refuse to permit an employee with a disability to keep the employee’s service animal with them at the place of employment (NRS 613.330(6)). The law makes no mention of the ability to offer an alternative accommodation nor does it require an employee to show that the service animal helps them to perform job functions. Unfortunately, we could not find any legal guidance clarifying any exceptions to this requirement. Accordingly, this employer may be required to allow this individual (if hired) to have their service animal in the workplace.

The HR Hotline does not provide legal advice and this is a matter that should be handled delicately. Given the complex issues involved in the scenario you describe, we strongly recommend consulting with legal counsel, who will be able to review the specific facts and circumstances and provide tailored legal advice accordingly.

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