Publications

Office Space or Petting Zoo? ‘Comfort’ Bunnies, Snakes, and Pigs May Be Coming To A Workplace Near You

Employment and Labor Legal Update

Question: When is a dog like a pig?
Answer: When it finds a home in the workplace as a comfort animal.

A variety of news reports describe the increasing use of service animals and emotional support (comfort) animals by members of the public.

At the same time, there has been pushback against this trend, and more than 21 states have announced crackdowns on people who falsely claim their pets as service and support animals so they can take them into such places as restaurants and movie theaters.

Because the use of these animals is generally claimed to be necessary because of some kind of disabling condition on the part of the animal’s owner, the question arises as to what obligations employers may have to allow service and support animals in the workplace.

Service Animals Versus Comfort Animals

As most employers are well-aware, Title I of the Americans with Disabilities Act (ADA) prohibits discrimination against disabled applicants and employees, and requires accommodation for the needs of those individuals. Title I, however, is completely silent as to the use of service and comfort animals as a form of accommodation.

Significantly, other titles within the ADA do address the issue.

Specifically, Title II, which describes the obligations of state and local governments, and Title III, establishes obligations of places of public accommodation (including restaurants, hotels, movie theaters, and retail stores). Both define what “service animals” are and require that they be allowed to accompany people with disabilities in publically accessible areas of the respective facilities.

Titles II and III define these service animals as working dogs (only “man’s (and woman’s) best friend” qualifies as a service animal, although miniature horses may qualify in limited circumstances) that perform tasks directly related to the person’s disability. The dogs may do such things as direct blind people, alert deaf people, guide a wheelchair, alert people suffering from seizures, remind people to take medications, and calm those suffering from Post-Traumatic Stress Disorder (PTSD) during an anxiety attack.

Emotional support or comfort animals, however, are another “breed” of the proverbial “cat.” These are animals of any kind – including cats, dogs, goldfish, birds, bunnies, pigs, snakes, kangaroos, and an on-going menagerie, limited only by employees’ imaginations – whose function is to provide emotional support to the owner. This can include therapeutic benefits and feelings of safety, calm, or general well-being.

Emotional support animals, however, do not qualify as service animals under Titles II and III of the ADA, generally because they do not meet the requirement of having been trained to perform a specific job or task. As a result, state and local governments and places of public accommodation are not required to allow emotional comfort animals into their premises (unless a state or local law says otherwise).

Animals in the Workplace

So, what about bringing service animals and emotional support animals into the workplace?

While Title I ADA is silent on the issue, an employer may not impose a blanket policy excluding animals from the workplace. In the limited number of cases involving service dogs in the workplace, the employer has been required to allow the animal to be used in the workplace as a means of reasonable accommodation. 1,2

Service animals, then, should be treated as any other type of reasonable accommodation to be considered during the required interactive process. For example, if an employee asks an employer for permission to bring a service dog to work, the employer must determine:

  1. If there is a disability present;
  2. If the employee is “qualified” under the ADA, that is, able to perform the essential functions of the job with or without an accommodation;
  3. Whether there is a relationship between the requested accommodation and the disability’s impact on the employee’s ability to perform the essential job functions that she/he could not otherwise do, e.g. whether the service animal allow the employee to perform his or her job duties; and
  4. Whether providing the requested accommodation will create an undue hardship to the employer, and if so, whether there is another reasonable accommodation that can be implemented. It may be that the service animal would pose an undue hardship on the employer by disrupting the business or affecting other employees’ ability to perform their jobs.

For example, another employee may be highly allergic to the dog for which permission is being asked to bring it into the workplace. Other means of accommodation thus would have to be explored. Employers presented with such requests should be careful to take the matter seriously and avoid violating the ADA.

Case-by-Case Analysis

The critical factor is undertaking this kind of case-by-case analysis and fully communicating with the applicant or employee in question. In this connection, an employer has the right to require documentation of an employee’s need for an animal as an accommodation.

An additional question is whether employers are required to grant an employee use of an emotional support animal in the workplace as a reasonable accommodation under Title I of the ADA. No decisions on the subject have been issued by any of the federal Circuit Courts of Appeal, and cases filed in the federal district court remain to be decided on their merits.

In view of the desire of many courts to read the ADA expansively, however, we anticipate that the same considerations applicable to service dogs will also be applied to requests for the use of emotional comfort animals in the workplace. The position of the Equal Employment Opportunity Commission (EEOC), which enforces Title I of the ADA, is clear. For example, in EEOC v. CRST Int’l, Inc., et al., filed in the Middle District of Florida, the EEOC has taken the position that an employer should have allowed an employee to use an emotional support dog at work as a reasonable accommodation; that case has recently been transferred to Northern District of Iowa, Cedar Rapids Division.

In short, it is likely that use of a comfort animal will be treated as any other form of accommodation; that is, a review must be made as to whether it is reasonable for the employee to use it or whether, instead, it creates an undue hardship for the employer.

1 McDonald v. Dep’t of Envtl. Quality, 2009 MT 209, 351 Mont. 243, 214 P.3d 749.

2 Branson v. West, No. 97 C 3538, 1999 WL 1186420.

Rick Vernon and Nida Kanwal are employment attorneys who represent management in workplace employment matters. For more information on bringing comfort animals into the workplace, contact Rick at rgvernon@lerchearly.com or Nida at nkanwal@lerchearly.com.

Services

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

Share

Email Confirmation

Thank you for your interest in Lerch, Early & Brewer. Please be aware that unsolicited e-mails and information sent to Lerch Early though our web site will not be considered confidential, may not receive a response, and do not create an attorney-client relationship with Lerch Early Brewer. If you are not already a client of Lerch Early, do not include anything confidential or secret in this e-mail. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not authorized to do so.

By clicking "OK" you acknowledge that, unless you are a current client, Lerch Early does not have any obligation to maintain the confidentiality of any information you send us.