Tuesday, June 16, 2015

"Take Your Dog To Work Day" -- Recipe for a Happy Work Place or Possible Disaster Area?


“Take Your Dog to Work Day” is Friday, June 26, 2015.  Although it sounds warm and fuzzy for employees to be able to bring Snuffy and Muzzles to work, pets in the office raise many questions regarding safety for employees and potential liability for employers.  And there’s also the issue of employee productivity.

“Take Your Dog to Work Day,” or "TYDTWDay," was created by Pet Sitters International and was first held in the United Kingdom in 1996 and in the United States in 1999.   It has since expanded to Canada, Australia and New Zealand.  Its original purpose was to raise funds for local shelters.

Some businesses, such as Google,  Procter & Gamble, and Amazon routinely allow their employees to bring their dogs to work. The concept is becoming more common, with companies seeing it as boosting employee morale, demonstrating to employees that the organization is sensitive to employees’ needs, and lowering stress in the workplace. Some employers see it as a way of encouraging their employees to work longer hours.  

But there are also a host of possible problems.  Hospitals, medical facilities, pharmaceutical companies, chemical laboratories, and food businesses should not host employee pets.  It’s noteworthy, however, that Ben and Jerry’s is known to allow employees to bring pets to work. Presumably the pets are allowed in the administrative offices, not where the ice cream is made.   

What are the legal implications to allowing dogs at work?

The first issue is safety.  What if a dog bites an employee?  Before allowing pets in the workplace, the employer must be sure that the pet owner has insurance that will cover any injuries caused by the pet. 

Let’s start with dog bites.  Normally the dog’s owner would be liable if the dog were to bite someone.  But it’s also possible that the employer could be held jointly liable.  It’s also possible that the employee could file a Worker’s Compensation claim, since the injury occurred in the workplace. It might even be prudent for the employer to require the pet owner to sign a document agreeing to indemnify the employer against any costs of defending a dog-bite case.  

Dog bite cases are governed by state law, so it would be important for anyone concerned about this issue to consult a lawyer in the state where the employer is located.  One issue addressed by the courts is whether, if the employer allows the employee to bring the dog to work, the employer is considered the dog’s “keeper.” In Connecticut, for example, an "owner" or "keeper" of a dog is liable for injuries the dog causes, but two cases held that allowing an employee to bring a dog to work does not make the employer a keeper of the dog.  See LaVoy v. Rosenthal, et al., 1999 Conn. Super. LEXIS 3250; Falby v. Zarembski, 221 Conn. 14, 19, 602 A.2d 1 (1992). However, the courts concluded that a plaintiff could bring a claim for negligence against the employer for a dog bite occurring at the workplace.

What it means to be a dog's "keeper" was explained in Kircher v. Baugess, Court of Appeals of Ohio, Twelfth District, Madison County. October 15, 2013 (2013 WL 5636343).  Michael Kircher and Brittnie Blackmon were classmates at a pre-veterinary technology school.  Brittnie brought in her dog “Ace” to act as animal patients. The idea was that students in the class would have practice interacting with the dog, giving him a health exam and bathing him.  During the session, while Michael was petting Ace, the dog bit Michael on his face above his lip. His injuries required medical attention and left a permanent scar.

As Michael and Brittnie were minors, Michael’s parents sued Brittnie’s parents for the damage done to Michael by Brittnie’s dog.  The question was whether, since the dog was in Michael’s care at the time of the injury, Brittnie’s parents were “strictly liable,” meaning that if the dog caused the injury, they would be liable even if Brittnie was not negligent.  Under Ohio law, “the owner, keeper, or harborer of a dog is liable in damages for any injury, death, or loss to person or property that is caused by the dog...”  The definition of a “keeper” was the person having “physical charge or care of the dog.” 

Michael argued that he was not the “keeper” at the time Ace bit him. He testified that the students in the class would take the dog and place it on an adjustable table and then secure it with a noose around its neck. He said that  “someone always had to keep an eye on the dog, keep a hand on the dog and make sure the dog doesn't jump off the table.” He also explained that once secured, the students would “do the general parameters” and then bathe and dry the dog, and that it was the students' duty to keep the dog calm and to follow all prescribed safety measures.

On the day of the incident, Michael approached Ace, who was already on the examination table and secured in the noose. Michael began to pet Ace on the head to calm him down because he believed that Ace appeared to be “a little nervous.” Another student was positioned near Ace's midsection area petting and hugging the dog when Ace suddenly lunged and bit Michael’s face.

Michael testified that he was unsure as to where Brittnie was located at the time he was bitten, but thinks that she may have been petting Ace on the neck.

Brittnie’s testimony was that she and another student placed Ace on the table, and then Michael put on gloves and joined them.  Brittnie realized that she forgot her clipboard, so she left the table and walked across the room.   When she was 35–40 feet away from Ace, she saw that Michael had been bitten.

The Court concluded that Michael was a “keeper” of Ace as contemplated by the statute, because he testified that he thought Ace was acting nervous and that he felt compelled to calm the dog by petting his head. Therefore, Michael’s actions in the moments preceding the incident indicate that he was exercising physical care and charge over the dog.

Another instructive case was Smith v. Elick,  763 N.W.2d 277 (Court of Appeals of Iowa. 2009).  Kelly Smith worked at Kunkel's Sport Center, Inc. (Kunkels) with Todd and Natasha Elick.  The Elicks worked as employees but were also the sole shareholders of Kunkels. For years the Elicks brought their dogs to work with them, finding that having the dogs at work was good for business as it created a comfortable, family-oriented environment at the store. The Elicks also used their dogs in television and print advertisements.

One day, when the dog (an Akita) was secured him in the backroom with a leash, Smith went into the back room to get cookies, which Kunkels provided for customers. While Smith was moving cookies, the dog attacked her, causing substantial injuries including pain, disability, loss of income, and emotional distress. Smith filed a workers' compensation claim. The workers' compensation insurance carrier for Kunkels paid Smith temporary total disability and medical payment benefits.

But workers compensation does not provide damages to the injured individual, so Smith sued.  The lower court ruled that workers’ comp was the exclusive remedy, so Smith could not receive monetary damages.  This ruling was sustained on appeal.

Employers considering allowing employees to bring their dogs to work should consider requiring employees to provide insurance covering any damage or injury by the dog.  The employer should review the policy to assure that there is not an exception if the dog is brought to a work site.

What about property damage done by the dog, such as damage to the premises or to the personal property of other employees?  The employer could require the pet owner to sign an agreement to cover any damages.  

Does the landlord at the work site permit pets?  Many office buildings do not allow employees to bring in pets (of course, this does not apply to service animals).  So the employer should check the lease.

Another issue is disability discrimination.  While the courts have not yet found an employer liable for issues associated with allowing or prohibiting pets, this is an area to be aware of when considering a pet policy. Cases in the past have covered whether fear of animals can be considered a disability in animal-friendly workplaces and also whether an employee has the right to bring a dog to work, relating to an accommodation for stress and/or anxiety.

While these cases have shown the courts’ reluctance to find liability under strict liability statutes or under ADA accommodation laws, an employer should still take into account the cost and expense in having to defend such suits when deciding whether to permit pets in the office.

What about the health concerns of other employees?  Some people are allergic to animals. Some of these allergies cause rashes, temporary breathlessness, panic attacks, and even severe respiratory disorders. Therefore, consideration must be given to the Americans with Disabilities Act (ADA) and the Occupational Safety and Health Act (OSHA).  An animal allergy might be considered a disability under the ADA if it impairs a “major life activity,” and an employee who has significant problems breathing around animals would have a viable claim. Any employee with such concerns must be permitted to work in another area to assure no contact with the animals. 

However, the allergy must be severe to be covered by the ADA.  This issue was considered in Gallagher v. Sunrise Assisted Living, 268 F.Supp.2d 436 (E.D. Pa 2003). Gallagher was hired by Sunrise as a concierge in 1997.  Sunrise allowed pets in its facilities, and mandated that there be at least one dog in each of its residences due to the alleged therapeutic value of animals to seniors.  Gallagher’s desk was located on the main floor, and her primary responsibilities included manning the front desk, greeting visitors, answering the telephones, taking messages and monitoring the bistro area of the lobby, including keeping it clean and tidy.

At some point during her tenure at Sunrise, Gallagher realized she was allergic to animals. She asked Sunrise's then Executive Director to assure that the pets, to the extent possible, be kept away from her desk in order to minimize her allergies. The Executive Director agreed, and asked the staff to keep pets away from the immediate vicinity of Gallagher's work area and keep the area vacuumed and free of pet hair.

Two years later, a new Executive Director was hired, and the employees no longer followed the previous Executive Director’s request to keep pets away from Gallagher.  Her allergies exacerbated, and her entreaties to management did not improve the situation. Gallagher resigned and filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”).  In it, she alleged that Sunrise failed to accommodate her allergies as a disability under the Americans with Disability Act (“ADA”).  She then filed suit, alleging Sunrise violated the ADA by denying her a reasonable accommodation for her allergies, thereby forcing her to resign her employment.

The Court held that Gallagher was allergic to dogs, and suffered impaired breathing when exposed to them.  However, it found that Gallagher could use an inhaler, and her allergy was not so debilitating that it limited Gallagher’s ability to hold a conversation or move about freely

Since the Court found that there was no evidence to support a finding that Gallagher qualified as disabled as defined by the ADA, Sunrise was not required to accommodate her allergies.

Even if the employee does not have health issues that rise to the level of an ADA claim, some workers might be genuinely scared of animals and feel stressed out around them. For such individuals a pet in their workplace is not a calming presence, but rather a constant threat to their wellbeing and safety. 

There are also health concerns among animals.  Dog boarding and grooming facilities require that animals have certain vaccinations before they may be left where they are in contact with other animals.  If multiple animals are coming together in an office, their vaccinations must be shown to be up to date before being permitted to participate.  

What about animals that become disruptive in the workplace?  All pet owners who wish to bring animals to the workplace must be advised that if their animal is disruptive, the employee must remove the animal from the work place and be charged with personal vacation time for the remainder of the day. 

Finally, what about employee productivity?  According to Julie Franklin, a Procter and Gamble Communications specialist quoted in a USA Today report, "Having pets in the office boosts morale,. It's a definite stress-reliever. It makes our employees healthier and calmer, which means they're much more productive."  According to Dog Daily,  “Having a dog -- or any pet -- around has a soothing and mood-lifting effect on people,” explains Lori Meyer, a pet sitter and dog walker in the Los Angeles area. “When people are happy and calm, they are more productive. Allowing people the opportunity to meet and interact with their co-workers’ pets increases the bond and camaraderie between co-workers, leading to a cohesive team atmosphere and a positive work environment.”

The website "Dog Friendly" reports that in the Washington, DC area, only Maryland employers Empower IT Inc. of Bethesda and the American Hiking Society of Silver Spring allow dogs in their offices year-round. The owners of Empower IT Inc. bring their own dogs to the work Monday through Thursday, and on Fridays, “we allow other dogs in the office but we do try to limit the number we have since we don't want any ‘dog fights’. " 

The American Hiking Society, with nine employees, often has between two and four dogs in the office.  One employee commented, “Being able to bring my dogs to work is the only reason I don't mind working crazy hours and overtime - if they are in the office with me, I'm not in a hurry to go home and take them on a walk.” See Dog Friendly. 

Overall, bringing Fido to work may make for a happy and productive work environment.  But employees and employers should take care with regard to the potential legal issues involved.

This blog post was written by Elizabeth Newman, enewman@kcnlaw.com.

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