This is part two of the three part series addressing pets in the workplace. The first post discussed the benefits of allowing pets in the workplace. This second post will provide insight into the legal liabilities and other litigation that has occurred in this area. Our final post next week will include information on how to assess if pets in the workplace are right for your company and what should be incorporated into a workplace pet policy.
Legal Liability Relating to Dogs in the Workplace
Not surprisingly, there have been legal issues when employers open their doors to pets. These cases range from American Disability Act (“ADA”) accommodation classes to liability for dog bites.
Who is Liable for Injuries Caused By Pets?
An important issue for businesses when deciding whether to permit pets is the issue of liability for dog bites. While a dog owner would, in most cases, be liable if the dog were to bite someone, there is also a possibility the employer would be jointly liable in a personal injury lawsuit. Two cases in Connecticut addressed an employer’s potential for liability under the strict liability statute for an “owner” or “keeper” of a dog and found that allowing an employee to bring a dog to work does not make the employer a keeper of the dog. (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.
One solution to the issue is to require employees to provide insurance covering any damage or injury by the dog. Many policies may have a business-pursuit policy exception that may result in the insurance company refusing coverage, in which case a plaintiff is going to seek to recover against the employer. In a case in California, two insurance companies were involved in a lawsuit addressing one company’s request for contribution based on the legal right to defend a lawsuit. In this case, Philadelphia Indemnity Insurance Company sought contribution against Fire Insurance Exchange for costs incurred in a personal injury lawsuit involving a dog bite in the workplace. Under the Fire Insurance Exchange policy there was an exception for injuries arising from the individual’s work or occurring during the course of her work. In this case, a marriage and family therapist brought her dog to work on occasion when she was unable to leave it at home, and the dog bit a patient during a session. The court found that the incident arose from the pursuit of business, and it was excluded under the policy exclusion. Therefore, it is important to require that an employee have insurance coverage and to review the policy for any exceptions pertaining to the workplace. When in doubt, do not permit the employee to bring a pet to work or look into the costs of obtaining a business policy that would cover such instances.
Americans with Disabilities Act Cases Involving Pets in the Office
There have also been ADA cases involving pets in the workplace. 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. In one case the case of Calhoun v. Foodarama, a New Jersey mailroom employee of Foodarama Supermarkets told her supervisor, who frequently brought cats to the office, she suffered from a fear of cats or ailurophobia. In response to her complaints, the supervisor instructed her to stay in the mailroom to avoid encounters with the cats. The employee missed a week of work, claiming it was due to the fear of the supervisor’s cats, and was terminated shortly thereafter. The employee filed an EEOC complaint stating the company discriminated against her on the basis of her disability and refused to accommodate her. The employee failed to file her complaint in time; therefore, the judge did not have to decide whether ailurophobia was a legitimate disability recognized under the ADA but did indicate such contention would be “tenuous at best.”
There have been other ADA lawsuits involving an employee’s right to bring a dog to work relating to an accommodation for stress and/or anxiety. The decisions in the cases demonstrate that the courts are reluctant to open up this possible floodgate. In Edwards v. United States EPA, the District Court for the District of Columbia held that there was no objective evidence that allowing an employee to bring his untrained puppy to work would have decreased his anxiety and allowed him to perform better. The court cited a case dealing with a no-pet policy in a housing complex with the position that while “dogs possess the ability to give unconditional love, which simply makes people feel better” this idea “permits no identifiable stopping point: every person with a handicap or illness that caused or brought about feelings of depression, anxiety or low self-esteem would be entitled to the dog of their choice, without regard to individual training or ability. And if certain people liked cats, fish, reptiles or birds better than dogs, there would be no logical reason to deny an accommodation for these animals.” Therefore, it is unlikely that other than service dogs, an employee can justify bringing a pet to work under the ADA.
While these cases illustrate the courts are reluctant 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.
Please check back next week for the final part of this series, which provides information on assessing if you have a workplace that would be suitable for pets and what policies you should put in place if pets are allowed in the office.