We’ve all read the recent news headlines about the emotional support peacock that was not allowed to board a United Airlines flight and the 300-pound emotional support pig that was rejected by US Airways. These stories are becoming more and more common and have led a number of employers to ask what their responsibilities are when an employee asks to bring an emotional support animal to work as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).
To answer this question, it is important to understand what the ADA actually says and does not say about the subject. What is does say is this: Title III of the ADA – the public accommodations provision – requires most public businesses and venues to modify their “no pets” policies and to accommodate “service animals.” Title III expressly defines a “service animal” as any dog (and, in some cases, a miniature horse) that is individually trained to do work or perform tasks for the benefit of a disabled individual. Examples of such tasks include guiding a blind person or reminding a person to take medication. Notably, dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under Title IIII.
In comparison to Title III, Title I of the ADA, which prohibits private employers from discriminating against qualified persons with a disability and requires them to make reasonable accommodations, is silent on the issue of emotional support animals (as well as service animals). In the absence of any affirmative requirement in Title I, the initial instinct of many employers is to reject a request to bring an emotional support animal to work out of hand, citing either a “no pets” policy or a long list of concerns about having an animal in the workplace. Often-raised issues include: What do we do if a co-worker or customer has a fear of the animal? How do we address health and safety concerns (e.g., co-worker allergies, unwanted pests, waste disposal, vaccinations, animal bites)? What happens if the animal is a distraction to others? Can I be sued if the animal bites an employee or customer?
Notwithstanding this long list of questions, which are both real and complex, it is the position of the EEOC and the one or two courts that have considered the question that a request by a disabled employee to bring an emotional support animal to work should not be rejected out of hand; rather, employers should follow the generally applicable standards regarding reasonable accommodation in the workplace and undue hardship – that is, to engage in the interactive process to determine whether allowing the emotional support animal is a reasonable accommodation that is required to assist a disabled employee or applicant in performing an essential job function and, if so, whether the accommodation will impose an undue hardship. In fact, the EEOC recently filed suit on this very issue, suing a trucking company for refusing to hire and failing to accommodate a truck driver (also a veteran) following his request to allow his emotional support dog to accompany him on his truck route as an accommodation for the driver’s PTSD and mood disorder. The case is EEOC v. CRST Int’l, Inc. and it remains pending.
So, the bottom line for employers is to take these requests seriously and do not prejudge the request based on preconceived ideas about its legitimacy or complexity. Employers should follow their usual accommodation process, including requesting appropriate documentation from the necessary parties (the employee, the employee’s health care provider, and/or the animal trainer) to understand how the animal will assist the disabled person at work and what impact the animal may pose on operations as well as co-workers and customers. Employers should also consult state law for requirements or obligations that are in addition to those under the ADA.