Raining Cats and Dogs in the Workplace? It’s Pawssible

By Courtney Amelung - Shawe Rosenthal LLP

August 15, 2018

I’m embarrassed to admit that I used to be one of those people who hate dogs.  How could anyone dislike an adorable bundle of fur that excitedly greets you each time you walk in the door, you ask?  I know, it’s crazy.  Fortunately, I’ve come to my senses and now gush over any dog I see – anytime, anywhere.  So this begs the question: will I ever be able to see a dog every day while I’m at work?

As more people begin to rely on service and emotional support dogs, employers are receiving more requests from employees who want to bring those dogs into the workplace.  Unsurprisingly, those employers are left to consider whether they must allow access to service and emotional support dogs in the workplace as a reasonable accommodation under the Americans with Disabilities Act (“ADA”)?

Unfortunately, Title I of the ADA, which prohibits disability discrimination in the employment context and requires employers to provide reasonable accommodations to applicants and employees, is silent as to whether service or emotional support dogs could be an appropriate workplace accommodation.  In fact, it doesn’t even define what constitutes a service or emotional support animal, which means that animals other than dogs (cats, bunnies, miniature horses, snakes?) might qualify as a reasonable accommodation.

Under Titles II and III of ADA, which pertain to State and local governments, public accommodations, and commercial facilities, a “service animal” is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.  The tasks performed by the service animal must be directly related to the individual’s disability.  Those tasks might include, for example, alerting an individual with diabetes that his blood sugar levels are too high or too low, or signaling to a veteran with PTSD that it’s safe to enter a new location.

By comparison, an emotional support animal is a companion animal that provides a therapeutic benefit to an individual with a mental or psychiatric disability, such as anxiety or depression.  An animal is not required to undergo specific training to be considered an emotional support animal.

If an employee asks to bring his or her service or emotional support animal to the workplace, here are some considerations to keep in mind:

    • From a practical standpoint, employers should treat this request just like any other request for a reasonable accommodation. If the employer allows other employees to bring their animals to work, the employer should allow employees with disabilities to bring their service and emotional support animals to work without engaging in interactive process required by the ADA.  If the employer has not previously received a request to bring a service or emotional support animal into the workplace, it should consider whether such an accommodation could be provided without imposing an undue hardship.

    • Under the ADA, employers are permitted to ask for medical documentation if the disability and need for the accommodation are not obvious or already verified. With respect to service and emotional support animals, the employee may be required to provide documentation from a health care provider verifying that the animal is needed for disability-related reasons.

    • Additionally, with respect to service animals specifically, the employer may request documentation pertaining to the animal itself. For example, the employee could be required to produce evidence that the animal has been trained and is capable of functioning in a workplace environment.  Such documentation might come from the individual or organization that trained the animal, as opposed to employee’s healthcare provider.

    • A reasonable accommodation need not be provided if it would impose an undue hardship on the employer’s operations. In determining whether a service or emotional support animal would impose an undue hardship, the employer should consider factors such as whether the animal could feasibly accompany the employee in the performance of his or her tasks, whether the animal would be disruptive of other employees, and whether the animal is trained to be in a work environment.

    • One of the best ways to determine whether a service or emotional support animal could be an appropriate and effective reasonable accommodation is to allow the employee to bring the animal to work on a trial basis. If it becomes apparent that the animal imposes an undue hardship—because it cannot be controlled and behaves aggressively towards other employees, for example—the employer can terminate the trial period and engage with the employee to determine whether another accommodation is available.

    • As always, employers should be mindful of any state-specific laws that afford greater protection to service and emotional support animals as reasonable accommodations.

This issue is definitely one to keep your eye on until we receive more guidance as to whether employers must consider service and emotional support animals as a reasonable accommodation under the ADA.  The EEOC recently filed a lawsuit related to this issue, and the case is currently pending in Iowa federal court.  Ultimately, employers likely have a greater obligation to accommodate service animals, which are trained to assist individuals with disabilities with specific tasks, as opposed to emotional support animals, which merely provide companionship.  But the reality is there may be some more furry (or not so furry) friends in our futures.  I wouldn’t hate it.