Posted on November 16, 2023
Important Takeaways: The 6th Circuit Court of Appeals held that a hospital did not violate the Americans with Disabilities Act (ADA) when they did not let a nursing student bring her service dog on the floor with her while she was doing her clinical rotation. The dog caused allergic reactions and therefore was a direct threat to the safety of the staff and patients at the hospital.
Facts: In the Fall of 2020, a nursing student completed a clinic rotation at Hurley Medical Center (Hurley) as part of a nursing program at the University of Michigan- Flint (the University). Before beginning this rotation, the student requested that Pistol, her service dog, be permitted to come on her rotation with her. Pistol helps the student with panic disorder by notifying her of when to take medication. Hurley agreed to this arrangement. Hurely’s Service Animal Policy says that every attempt would be made to not separate or attempt to separate a Handler from his or her Service Animal. The Policy also says that service animals cannot go in sterile areas. Service animals were generally allowed unless an individualized assessment determined it was too much of a risk.
On the first day Pistol was brought to Hurley, one staff member and one patient reported allergic reactions, with the staff member suffering a severe allergic reaction. The staff member had to go home and this caused staffing issues at Hurley. Another staff member had to be placed on another unit when the student was on rotation because she also had a dog allergy. Hurley informed the student that they were going to reevaluate the accommodation and the student offered to have Pistol wear a shed defender, a suit that minimizes shedding. The student could not find a shed defender to fit Pistol and never investigated other options after telling Hurley she would.
After finding out the student had not gotten a shed defender for Pistol, Hurley’s ADA compliance personnel, Summer Jenkins, emailed the student revoking her ability to have Pistol with her at all times in the hospital. Hurley determined that the reasonable accommodation it could provide was to crate Pistol in the hospital and provide the student with the opportunity to take necessary breaks to be with Pistol. The next day the student did not bring Pistol to Hurley but said she would like to continue to talk about accommodations because the one offered would not allow for proper utilization of the service dog. Two officials from the University, the student, Jenkins met over Zoom, but this did not change Hurley’s stance on the situation.
Jenkins emailed the student the next day to inform her Pistol could only be at the hospital in a crate on a different floor and moving patients allergic to dogs would be unworkable and would compromise patient care. The student finished her rotation at Hurley with Pistol in the crate without having a panic attack. The student completed two rotations at other hospitals with Pistol and one other rotation at Hurley without Pistol in a different department.
Hurley said that moving patients from the floor the student was on would compromise patient care because not every floor provided the same type of care. Moving staff would be difficult because the nurses were part of a collective bargaining agreement. They were also worried because the floor the student was on was for patients with kidney complications, who were immunocompromised.
The student filed a lawsuit in federal district court alleging monetary damages and asking that Pistol be allowed on future rotations. The district court granted summary judgment for Hurley and said no reasonable jury could find they did not provide a reasonable accommodation because Pistol constituted a direct threat to the health and safety of patients and staff.
The court held that to establish a prima facie case of intentional discrimination under Title II of the ADA, a plaintiff must show (1) she has a disability; (2) she is otherwise qualified; and (3) she was being excluded from participation in, denied the benefits of, or is subjected to discrimination under the program because of her disability. If the student can show a prima facie case, the burden would shift to Hurley to show a legitimate, nondiscriminatory reason for its actions. If Hurley can show this, then the student must show that their reason is merely a pretext for unlawful discrimination.
The Court held that the student alleged the hospital intentionally discriminated against her when it prevented Pistol from accompanying her on her rotation, but the student did not point to sufficient evidence to show Hurley’s actions were motivated by the student’s disability. The Court upheld the district court’s decision to grant summary judgment to Hurley because Hurley’s reasons for not allowing Pistol at the hospital were motivated by staff and patient complaints and not because of the student’s disability.
The Court further held that a service animal is a reasonable accommodation unless they are out of control, not housebroken, would fundamentally alter the activities of the public entity, or, if, after conducting an individualized assessment of the animal, the public entity (Hurley in this case) concludes the service animal poses a direct threat. The Department of Justice guidance suggests that allergies should not be a reason to not allow a service animal, but the public entity should seek to separate the service animal from the individual with allergies, if possible. The Court then evaluated if Pistol was a direct threat to the health and safety of the patients and staff at Hurley.
Applicable regulations say to evaluate whether Pistol is a direct threat, the court must consider the following factors: (1) the nature, duration, and severity of the risk; (2) the probability that the potential injury will actually occur; and (3) whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. Pistol could be excluded if he constituted a threat to health and safety because of actual risks, not just speculations. Pistol did cause two allergic reactions on his first day at Hurley, one of which was severe, meaning that he was an actual risk. Hurley also could not have moved the student to a different floor because there were no University staff to supervise her on a different floor and there were patients with dog allergies on the other floor with nursing students.
The student also did not present any evidence that showed that it would not have been difficult to move patients allergic to Hurley and therefore the proposed accommodation of moving those patients was unreasonable. Hurley also showed that patients needed to remain on specific floors for different types of care. The Court upheld the district court’s finding that Pistol posed a direct threat to the health and safety of patients and that the accommodations necessary to mitigate the risk of his allergens were not reasonable.
The student also alleged that Hurley failed to engage in the interactive process required under the ADA. To show this, the student would have had to show a reasonable accommodation was possible and could have been identified if Hurley engaged in the interactive process. The Court held the student did not identify a reasonable accommodation that would have been possible. Hurley also acted in good faith when they offered to crate Pistol. Hurley did not fail to comply with the interactive process.
The district court’s grant of summary judgment to Hurley was affirmed.
What this Means: The elements to show a prima facie case under the ADA are the same in the 9th Circuit, where Montana is located, as they were in this case. The requirement for a public entity to act in good faith during the interactive process in this case also came from the 9th Circuit. The 9th Circuit also recently held that the standard for a reasonable accommodation is a substantial increase in costs.
When denying a service animal as an accommodation, a public entity must engage in good faith in the interactive process and consider all possible reasonable accommodations.
About this case: Bennet v. Hurley Medical Center, 6th Circuit Court of Appeals, November 9, 2023. Read it here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin at 406-542-1300 to discuss these issues.