Geordie Duckler, JD, PhD, heads the Animal Law Practice, a unique private law practice in Portland, Ore., whose main focus is on the resolution, litigation and trial of animal-related disputes.
Dog's Life: Work of Dogs
Ask the Expert
June 17 2013
Q: At the business where I work, I have pleaded with my boss to allow me to bring my dog, arguing that it would make me a better employee. He’s generally sympathetic to the idea, but his hesitancy in actually approving my request triggers a question: Do workers have any legal right to have companion pets at work if it makes them more productive or mentally healthier?
A: Certainly, if you have an actual disability, federal law is on your side. The Americans with Disabilities Act (ADA) requires that an otherwise qualified employee with disabilities be given meaningful access to the same programs and services that other employees enjoy. In those circumstances where employees describe provision of an animal to be a “reasonable accommodation” for certain impairments, courts apply a balancing test, weighing the benefit of the assistance an animal might provide against the hardship a disruption might impose on others in the same workplace, including customers and co-workers.
Being a question of fact (that is, an issue that can be proven or disproven), a claim that having a dog ameliorates stress or allows one to better perform job duties must be supported by evidence that the dog has particular medically therapeutic qualities. In other words, just as in grade school, you will need a note from your doctor; further, the note must be specific—not just a vague endorsement of the dog’s effectiveness as an overall source of good feelings, but a solid diagnosis that the dog actually solves specific problems that need to be solved in order for you to do your work.
Like your boss, courts may pay lip service to the value of canine companionship but are ultimately quite reluctant to give legal significance to the observation that “dogs make people feel better,” since this point of view has no identifiable stopping point. The worry is that eventually every person who can make some sort of case for it (depression or low self-esteem, for example) would be entitled to bring the dog of their choice to work, without regard to job-related training or utility. Or worse, that there would be no logical reason to eventually deny accommodation for those who liked cats, fish, reptiles or birds better than dogs. For that reason, while one may find many more dogs in offices these days compared to even five years ago, it is doubtful that they will become a standard workplace phenomenon anytime soon. Another factor underlying courts’ anxiety is the odd (and quite modern) perception that overall, animals tend to subtract from human productivity much more than they contribute to it.
If you are not disabled, the only other two likely ways to legally compel your boss to accept your dog’s daily attendance would be either a) a claim of discrimination based on your membership in a legally protected category, or b) proof that your written employment contract provides for it in some manner. Both present obstacles, the former because dog ownership is not yet a recognized state or federal constitutional right, and the latter because you most likely do not work for Enlightened Dog Owners of America, Inc., Work and Woof United or any of the similar imaginary companies that one might envision during a lunchbreak daydream.
Until you do, your best bet is to check out the Pet Sitters International website, petsit.com, particularly their “Take Your Dog to Work Day” Action Pack. That way, you can lay the groundwork with your boss for at least one dog-accompanied work day next year.
News: Guest Posts
The Supreme Court ponders protecting dog-fighting videos.
April 27 2009
In the movie The Contender, a female nominee for vice-president explains her unwillingness to defend herself against false accusations this way: “Principles only mean something when you stick to them when it is inconvenient.” Her comment resonates with the larger notion that the First Amendment embodies several core principles, not the least of which expresses our profound respect for the freedom to speak, or refrain from speaking, one’s mind.
As an animal law attorney, my mental image of the free speech right is a patchwork of vivid scenes: an observer in the back of a courtroom gallery hissing out spite about a mentally ill defendant’s neglect of his sick horse; a witness’s tearful recrimination that her friend lied about the pet’s purchase; an activist’s irrational diatribe that I should suffer the same as a client’s livestock; a vet’s gleeful phone message to me promising to kill a client’s cat should the spay bill not be paid by noon. None of these words were easy to hear, or productive, or very informative, or noble in any sense—yet all were protected and given their own intrinsic value by the First Amendment.
I say all this as a preface to United States v. Stevens, which heads to decision soon in the U.S. Supreme Court. The forthcoming decision will start by considering a defendant’s conviction for selling dog-fighting videos under a criminal statute prohibiting creating, selling or possessing “depictions of animal cruelty.” Importantly, the Stevens case brings nothing new to light regarding the criminalization of acts of animal cruelty. The trouble stems from the tension between criminalizing someone “depicting” an act of cruelty and our overarching desire to protect speech without judging its content. The tension exists because the free speech right is not absolute: Our courts have often held certain depictions are not protected under the First Amendment, most notably and problematically obscenity, and courts have recognized that some bad acts include the act of speaking, such as the false cry of “fire!” causing panic in a theater.
Consider the innumerable dog-lovers who wish grave ill to people who “create, sell, or possess” dog-fighting videos and will proudly proclaim this opinion on websites, in e-mail forums, editorials, and, of course, blogs. There is no question that their right to so proclaim is protected by the First Amendment. But the hammer that strikes at the video producer, seller or purchaser lands sufficiently close to the critics’ pens and keyboards to jostle them as they write and type. Laws that make the production or possession of some words and images criminal can raise real fears about restrictions on closely related words and images: If videos of dog-fighting are prohibited, what about promotional brochures about videos of dog-fighting, and if those, what about editorials lauding them, online blogs analyzing them, or trial transcripts explaining them? As goes the topic of dog-fighting, whither goes topics of deer hunting, bass fishing, turtle racing and horse racing. Shudder to think, just how “criminal” are The Planet’s Funniest Animals videos?
“Principles only mean something when you stick to them when it is inconvenient.” It is nearly impossible to recognize any principle involved in actually making dogs fight for one’s entertainment, but it is not that difficult to recognize serious principles involved in possessing, or viewing, or reading about images of dogs fighting for entertainment, not the least of which includes the innate human drive to observe and understand all that goes on in the world and hope for some insight into its complexity. It is uncomfortable, outrageous, ridiculous and downright horrible to watch dogs fighting or to even know that others do. But how much more or less uncomfortable, outrageous, ridiculous or downright horrible is government censorship?
Dog's Life: Humane
Our dog law expert offers counsel on first bites, “free” bites, and laws with bite
Q: We recently moved to a wonderful new neighborhood and in honor of the occasion, our dog decided to nip our new neighbor—and her dog. My husband says not to worry since it “was the first time that’s ever happened and the first bite is free,” but I plan on entertaining a few worries anyway. Tonight’s guest list includes: Does the “one free bite” rule apply to a single bite or to a single incident? To bites to animals as well? Is it one per year, or one per location? Actually, come to think of it, is there such a thing as a “one free bite” rule and is it going to help us at all?
A: First, I’m with you in worrying in general. I believe for a responsible dog owner, a modest amount of anxiety is a much healthier response than blithe disdain. Part of dog ownership is to be aware that everything your dog does affects those around you, and to be conscientious therefore requires vigilance— and sometimes a little fretting. Second, your specific concerns have the added benefit of being well-founded.
Among its fellow urban legends, the belief that “every dog is entitled to one free bite” seems to be a gold standard— just ask anyone you know and you’ll hear that the first time your dog bites someone, you’re off the hook because you simply cannot be held legally responsible.
The truth is that the majority of state laws are to the contrary. Nearly every jurisdiction holds fast to the premise that known dangers cannot be ignored or excused. If a reasonable dog owner should have been aware that the dog was likely to bite, that owner is liable for even the first nip. The core rules revolve not around specific types of locations, types of animals or time periods, but around the general concept of “propensity”: the likely inclination of the dog to engage in any harmful act to anyone anywhere. While it is true that a dog’s history can sometimes be informative in that regard, the lack of a previous bite is not the only factor; if certain personality or behavioral aspects of a “never-having-bit-before” dog reveal the propensity to harm, then any harm that results is still actionable.
Note that the test is objective, not subjective—that is, the question is would a reasonable owner have known or been aware of that dog’s propensity, not would the dog’s actual owner have known or been aware. The law does not reward people for keeping themselves ignorant of potential risks, for irrationally discounting risks that others pay attention to, or for holding themselves to a special standard available only to them simply because they happen to know the dog better than others.
Unfortunately, I must actually add a little bit to your worry guest list. If carelessness can be shown in the manner in which the dog was being physically kept or controlled, the dog owner can sometimes be held responsible, even if the dog had no propensity at all. That means that if the way in which your dog was able to get to the neighbor in the first place was by virtue of a broken gate or fence, failure to use a leash when you were supposed to use one, or neglecting to keep an eye on where the dog was and what he was doing, then evidence of lack of propensity won’t affect the final outcome. The improper confinement or supervision exposes you to legal trouble anyway.
Finally, be aware that all of those principles apply to “damage” or “injuries,” not just to “bites” alone. Rules on liability do not particularly distinguish between different results of the dog’s misconduct; owners can be liable for a scrape to a person’s leg, a puncture in another dog’s ear, knocking a kid off a bicycle, or a break in a neighbor’s fence. The different measure and amount of damages in those varying situations, on the other hand, can be stark.
As Freud has pointed out much more poetically than I ever could, anxiety— though an initial source for positive action—can become harmful at the point that it paralyzes you from taking any action at all. If your spouse is no real help in allaying or addressing legal concerns, and if you have had enough of looking deeply into your dog’s eyes to try to decipher what he was really thinking when he did that, then perhaps you may wish to direct your worry-energy in a productive direction: toward chatting with a lawyer instead.
Dog's Life: Lifestyle
Going astray and finding solutions
Q: As a flood victim, my grief over not being able to find my dog is slowly being eclipsed by my frustration in dealing with a local animal shelter that seems clueless as to what, if anything, they are required to do by law to help me. Have any of our states or counties enacted post-Katrina legislation that might actually aid reunions of pets and owners following a natural disaster?
A: About two years ago, as a gesture toward addressing the Katrina debacle, Congress passed the Pets Evacuation and Transportation Standards Act (PETS), designed, ostensibly, to aid animals affected by natural disasters. Although animal rights groups optimistically heralded the new law as “groundbreaking,” in reality, all PETS did was to admonish FEMA’s director to ensure that state and local emergency preparedness plans “take into account the needs of individuals with household pets and service animals prior to, during and following a major disaster or emergency” in approving plan standards. That’s it—the potential safety of 75 million dogs in our country soundly addressed by 23 words advising an administrator to consider undefined criteria in approving funds to other administrators. The whole thing feels lifted straight out of a Dilbert comic strip.
Cynics may not be too startled, therefore, to learn that the core problem of what to do about dogs and other companion animals lost during a disaster was not solved a whit by PETS. Despite its self-referential acronym, nothing in the act actually detailed a single practical step or the working logistics of evacuating or transporting anyone’s pet anywhere. Implementing the act required only good thoughts, not good deeds. As often happens with hasty and reactive legislation, the act’s words mostly diverted public attention away from rather than toward solving real-world lost dog problems such as you have experienced. Certainly, the unfortunately worded command to “take into account the needs [of pet owners]” exhibits the same air of feebleness that emanated from FEMA itself right after Katrina.
Assuming that a pet owner’s “needs” in a storm’s aftermath are topped by a basic need to actively find the animal, then any post-PETS, FEMA-funded local emergency plan should at the very least fund an animal search-and-rescue squad. FEMA does deploy four Veterinary Medical Assistance Teams (VMATs), made up of veterinarians, pathologists, animal health technicians and microbiologists. Rather than animal rescue, however, their assigned tasks are all epidemiological: assessment of animals’ medical needs and treatment, disease surveillance, public health assessment, technical assistance to assure food and water quality, biological and chemical terrorism surveillance, decontamination, and euthanasia. In short, they are health workers whose focus is addressing crisis-style public health risks—locating pets is not in their repertoire.
Worse, VMAT deployment requires an “invitation” from an affected state only after the state has determined that its local veterinary community is overwhelmed, an invitation which must then be approved by the federal Department of Health and Human Services. These are not easy administrative requirements to fulfill in the brief window of time during which efforts to recover lost dogs are likely to be effective.
Apart from legislation, useful information on the topic is narrow. A quick glance at the jaw-droppingly lame tidbits that FEMA doles out in its public access materials under “Helping Pets Immediately After a Disaster” simply serves to highlight how poorly the federal government has confronted the gritty realities of what qualifies as real assistance. Advice to a panicked owner to “contact your local humane society chapter to locate the shelters or organizations near you” isn’t really worth the pixels required to display it.
One would hope that the political fallout from Katrina would at least have states scrambling to be more effectual in local legislation, but this has not been the case. A good example is Crawford County, Ohio (one of the places hard-hit by recent Midwest flooding, and currently receiving FEMA funds): Its in-place emergency preparedness plan does not even mention animals, much less detail specific resources for those hapless folks who’ve lost them.
One promising avenue is the creation of a national lost-pet database. In 2001, Louisiana formed a commission whose goals included coordinating “a statewide voluntary pet database that will assist animal owners in recovering lost animals.” Though the commission continues to be active, the database itself remains an unfulfilled promise. Private lost-and-found pet network sites such as Pets911.com and Lostpetdatabase.com, while operative and commendable, have sharp limitations: They rely on voluntary participation; are region-specific; and in practice, will never produce a national solution to a national problem.
Consider my two proposals to bolster the existing framework. The first is vertical: Across the country, we expand the existing VMAT program qualitatively by simply adding “search and rescue” to team task lists, and quantitatively by increasing the number of VMAT teams to 50, one per state. The second is horizontal: Within each state, we build a truly pragmatic lost-pet database by making microchipping mandatory and then linking microchip IDs to the GPS network. Smallish outlays of money plus modest impositions on owners plus large reliance on existing technology could perhaps add up to a reasonable fix.
For the present, stay optimistic that the federal government will eventually step up its program, and be heartened that each state has the independent power to fashion its own remedies. It may be initially disconcerting to realize that a VMAT team isn’t pulling up at your door any time soon, and that even if it did, it would more likely be to take a blood sample from you rather than scour the neighborhood for Captain Adorable. But the incentive is there, and those interested can generate political pressure. Go to fema.gov, click on “Regional Offices,” and call the number listed for either the Regional Coordinator or the SCO (State Coordinating Officer) who acts as the FEMA liaison; ask how your state’s emergency preparedness plan accommodates animals. If you don’t get an answer, express your concerns via a personal letter to the Director of Emergency Management for your state, and copy your local state representative and newspaper on the letter. And please—microchip your pet.
Wellness: Healthy Living
Veterinary practice … and malpractice
Question: I consider my dog to be my child. Does my vet have the same obligations toward her as a pediatrician does to a child?
Answer: When you take your child to a pediatrician, three roles develop: doctor, patient and patient’s parent. Since the patient is a minor, the doctor must rely on you as parent to consent to decisions about the child’s health, and you must rely on him or her as to the propriety of a proposed treatment. Every state has healthcare laws specifically supporting that arrangement and outlining duties inherent in each situation.
When you take your dog to a veterinarian, three similar roles arise—doctor, patient and patient’s owner—and, as a practical matter, much of the same drama is played out. With the vet’s input, you make decisions about what is ultimately done to the dog, and at what cost. No battery of laws applies to that interaction, however, and what qualifies as legitimate medical practice in the vet’s office derives not from healthcare statutes, but from common law contract rules regarding ownership and conveyance of personal property, and from common law tort rules regarding damage to personal property. Purely as custom, we tend to describe the dog as the “patient,” but as a legal matter, dogs do not have the rights that patients enjoy. No matter how we feel, in the eyes of the law, dogs are “objects,” not “persons.”
A vast legal and moral chasm separates dogs from children, and nothing reveals that gulf better than pondering the possible range of decisions that can be made in the two examination rooms. You cannot contract with a doctor to euthanize your child, to destroy or remove parts of his body, to compel one to become pregnant or another to be rendered infertile. You cannot employ a doctor to brand or mark your child for identification or tracking purposes.
You can prevent a doctor from disclosing personal information about your child. You can recover for the grief experienced as a result of a doctor causing the wrongful death of your child. A doctor cannot hold your child hostage until the medical bill is paid. Were you to select a less effective treatment for your child or decline treatment altogether solely to save the expense, while you might not technically violate a law, you would be universally abhorred for your decision. The opposite of all of those things are true with vets and dogs.
Much less of a gap divides doctors from veterinarians in their particular roles, even though large ideological distances separate their patients. Both doctors and vets are subject to statutes regarding neglect and abuse, and both are held to a comparable standard of reasonable skill and care in:
As with a doctor, a financial relationship with a vet is not required for accountability to exist, as both professionals may be held liable for negligence even where the services are provided at no cost. In itself, an unfavorable result does not constitute grounds for litigation, nor does an honest error in judgment made in the course of pursuing acceptable practices. Where alternate procedures are available, neither can be found liable for malpractice when employing medically acceptable techniques.
An expert witness is crucial to prove that either medical professional negligently treated or cared for a patient (however, with vet malpractice claims, plenty of nonveterinarians who routinely tend and treat animals, such as farmers, ranchers, breeders, stable workers, farriers, researchers and even some pet owners, might qualify as experts in helping to set standards of care). Finally, if either a doctor or vet’s conduct is wanton, malicious, grossly negligent or in reckless disregard of others, punitive damages may be awarded. False claims to have performed a procedure, charges for a procedure that was never carried out, performance of a completely unnecessary procedure or the misinterpretation of patently obvious symptoms are all grounds for action, whether the recipient is a dog or a child.
Because the law imposes different burdens on dog owners than on parents, I have found that open and frequent communication between vet and owner is almost more critical than it is between doctor and parent. In both sets of relationships, emotions can and do run hot; in both exam rooms, a human susceptibility to panic over the unknown and a human propensity to assign blame often interfere with the use of plain reason or plain talk. And in both, unequal levels of education between the parties tend to unravel the fabric of what had otherwise been a carefully woven understanding about reasonable treatment. Knowing that there is an imbalance of power, of knowledge and of the application of law should make dog owners particularly diligent about engaging in more talk, not less, about what has been, is to be or could be done.
So to answer your question: While some vets have a better “bedside manner” than others, the proverbial bottom line is that they can treat your dog essentially as a machine to be repaired to the extent that all of the following conditions are true: (a) dogs are physiologically comparable to machines; (b) the law allows vets to do so; and (c) you continue to employ them when they do. As a scientist, I believe that (a) is a poor assumption. As a lawyer, I nevertheless understand that (b) is unhappily correct. As a consumer, I find (c) to be the condition that is within one’s power to change. The marketplace of available veterinarians is expanding daily—you can help shape it by wise use of your pocketbook.
Dog's Life: Humane
The inside scoop
Question: What are animal control hearings?
Q: What’s their intent?
Q: What sort of authority do they have and where does that authority come from?
Q: Can the public learn anything from them?
Q: Can they be used as a lever for changing public policy regarding treatment of animals?
*The term “owner” is used here as the traditional designation, though it should be noted that, since 2000, over 43 U.S. cities, two state counties and the entire state of Rhode Island have enacted laws using the term “guardian” instead.
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