By Katherine Suttle Weinert
Animals can be of great service to humans, and determining when the law requires employers to permit an employee to bring an animal into the workplace can be difficult. The federal law governing animals in the workplace is the Americans with Disability Act (“ADA”) and its regulations. If an employer has a “no animals” policy, then permitting the animal is an accommodation that may be offered to an employee under the ADA.
Employment situations are governed by Title I of the ADA. Title I does not have express provisions regarding animals in the workplace. Notably, Title III of the ADA does have express provisions regarding the presence of service animals in public accommodations. Public accommodations are places such as restaurants, hotels, theaters, and retail shops. Knowing a little bit about Title III can help an employer understand its duties in analyzing an employee’s request for accommodation under Title I.
Many states have their own laws governing the presence of animals in the workplace and, as always, employers should be mindful of federal, state, and local laws governing the area of animals in the workplace.
Service animals and public accommodations
Title III of the ADA expressly permits service animals to accompany their human handlers in public accommodations.
Under Title III of the ADA, “service animal” means “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Under the definition, no other species, other than miniature horses, may be a service animal. The work or tasks performed by a service animal must be directly related to the individual’s disability. 28 C.F.R. § 36.104.
The prototypical “service animal” is a guide dog for a person with no or limited vision. However, dogs can be trained to provide other tasks such as seizure detection and alert, sound detection for those with significant hearing loss or deafness, and other services for people with disabilities. For an animal to qualify as a “service animal,” the animal must do work or perform a task to assist the person with a disability. The animal’s presence alone, while it may be calming to the handler, is not a “task” to turn a pet dachshund into a service animal.
Under Title III, the key in distinguishing between a service animal and an assistance animal—discussed below—is to focus on what tasks the animal performs. If the animal is not trained to undertake a specific task, then it is not a service animal under Title III of the Americans with Disabilities Act.
Emotional Support Animals under the ADA
Unlike Title III, Title I of the ADA has not been construed to be limited to only permit service animals in the workplace. A wide variety of animals without or without specialized training may be covered by Title I. This means that an employer may be faced with requests that go beyond the prototypical guide dog.
“Assistance animals” are companion animals that provide assistance to an individual, such as providing emotional support. Assistance animals may or may not be specially trained to perform a task in support of a person with a disability. For example, a monkey trained to turn door handles for an individual with limited mobility may be an assistance animal, but would not be a “service animal” under the current definition of the Title III (simply by virtue of being a monkey).
Sometimes the term “emotional support animal” is used. Unlike service animals trained to perform a task, emotional support animals provide comfort to individuals with conditions such as anxiety disorders through their presence alone. Commonly, emotional support animals are similar to domestic pets. However, an emotional support animal can be any species.
As a reminder, be cautious about your use of terminology because “assistance animal” can lead to confusion in states such as California whose laws refer to “service animals” as “assistive animals.”
Unlike service animals, assistance animals can be of any breed or species. This means that an employee’s request to bring an iguana to a car factory or a chinchilla to an accounting department should not be rejected out of hand.
Responding to requests for service or assistance animals in the workplace
Assistance animals are becoming more prevalent in American society, and employers may be wary that an employee is trying to pass off a pet as an assistance animal.
When confronted with an employee’s request to bring a service or an assistance animal to work, the employer should treat the request as any other request for accommodation under the ADA. For example, if the employer has a process it uses to handle requests for the provision of specialty equipment, then the employer may be able to use that same framework to handle requests for an assistance animal.
After an employee’s request is made, the employer and the employee should engage in the three-step “interactive process” to discuss the requested accommodation. The employee and employer should: (1) exchange information about the employee’s disability and work restrictions; (2) identify potential reasonable accommodations regarding the animal; and (3) reach a satisfactory decision about an effective accommodation.
During the interactive process, the employer may gather information about the animal such as whether it has been housebroken and how it will be cared for during the day, and address concerns regarding workplace safety.
Under Title III, the animal’s handler is responsible for cleaning up after the animal and providing all necessary care. Title III also places the responsibility for damage caused by the service animal on its handler. The same principle should apply in setting the ground rules for allowing a service or assistance animal in a workplace setting under Title I. It is unlikely that cleaning up animal waste will be deemed a reasonable accommodation that an employer failed to offer under Title I. However, permitting an employee to have a different break schedule to care for the animal or designating relief facilities for the animal may be part of the reasonable accommodation.
Also, mindful of the limitations placed by state laws, during the interactive process the employer may gather information regarding the employee’s disability that generated the request and how the request for the assistance animal supports the employee with his or her disability. A recommended practice is for an employer to engage in the process regardless of how outlandish the request may initially seem.
When an accommodation has been agreed upon, an important goal of the interactive process is working with the requesting employee to develop a strong strategy for integrating the animal safely into the workplace.
The Registration Myth
The ADA does not require service animals have any certification or documentation, in either a Title III or Title I (workplace) setting. Further, service animal jackets, special identification collars, or signage are not required by federal law or regulation to make an animal a “service animal.” Additionally, although there are many organizations on the internet offering “certifications” or “registrations” for service, assistance, or emotional support animals, the basis for an organization offering these credentials is not clear. The simple fact that an employee has or has not registered or certified their animal with an organization should not impact the employer’s reasonable accommodation analysis under the ADA.
Animals in the Workplace and Other Employees
The analysis of what is a reasonable accommodation may not end with permitting the animal into the workplace. Sometimes employers become concerned that if they permit the service animal or assistance animal, the animal at issue will either make an employee with allergies sick or make another employee fearful. These hypothetical concerns, however, may not be enough of a basis to deny an employee’s request to bring a service animal or assistance animal to work. In the event that there is a conflict between employees regarding the presence of the animal, employers may want to consider whether they can assign the workers to different spaces or provide an enclosed workspace.
Engaging in the interactive process, whether with an employee who needs a guide dog or with an employee who is severely allergic to dogs, is the key to successfully navigating an employee’s request for a service or assistance animal in the workplace. Knowledgeable counsel can be of great help in helping guide employers through this process, while taking into consideration all of the applicable laws.