Service animal or pet? When Rover comes to work

by Erica E. Flores

For decades, service animals were used almost exclusively to assist the blind and, in that role, were aptly known simply as guide dogs or seeing-eye dogs. But times have changed. Today, dogs and other service animals—including monkeys, parrots, and miniature horses—are being trained to provide a remarkable variety of services to individuals with disabilities. They can alert the hearing impaired to household and environmental sounds, warn epileptics of oncoming seizures, calm children and adults with autism, signal diabetics of changes in their insulin levels, and, increasingly, provide comfort and companionship to people with a wide range of mental and emotional disabilities, including depression, anxiety, bipolar disorder, and post- traumatic stress disorder (PTSD). What does that mean for employers?   Pit Bull Wearing Service Dog Vest

Emotional support animals?

The jury is still out on whether “emotional support animals” truly do improve the quality of life for people suffering from mental and emotional disabilities, but their use—and, indeed, the use of service animals in general—is growing at an exponential pace. So, what if a military veteran applies for a job with your company? And what if he requests permission to bring an emotional support dog or other service animal to work? Do you have an obligation to comply? What if you run a restaurant? A doctor’s office? A day care? What if one of your employees is allergic to dogs? Can you refuse? And if not, do you have any other options?

At present, there are many more questions than answers when it comes to an employer’s legal obligation to allow service animals in the workplace, but it may come as a surprise that there’s no legal definition of the term “service animal” in the employment context and no set of rules or guidelines that governs when you do or don’t have to allow one in your workplace. Instead, like so many other employment law issues, your obligation to permit a service animal in your workplace will depend on the unique facts and circumstances of the situation and the laws of your state.

‘Service animal’ or pet?

Because animals are now being used to assist people with many different types of disabilities in many different ways, you might (quite reasonably) assume that your obligation to allow service animals in your workplace is limited to certain types of animals performing certain types of services. After all, without such guidance, anybody could claim that his pet provides him with comfort and companionship—and people keep some pretty unusual pets. The law cannot possibly require you to allow parrots, ferrets, or, God forbid, snakes in the workplace, can it? Actually, it can.

The Americans with Disabilities Act (ADA) regulations define a “service animal” as “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. . . . Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.” Additionally, while the work or tasks performed by a service animal must be “directly related to the individual’s disability,” the regulations state that “the provision of emotional support, well-being, comfort or companionship” is not work or a task within the meaning of the ADA. Instead, the definition contemplates more traditional tasks—such as assisting individuals who are blind or have low vision with navigation or alerting individuals who are deaf or hard of hearing to the presence of people or sounds.

But you should be wary of relying on that definition of “service animal” when you’re considering whether you must allow an employee to bring a particular animal into the workplace. Indeed, the ADA’s definition of the term applies only in the context of public accommodations. In other words, it defines the types of animals that must be permitted to accompany patrons into retail, service, and other establishments that are open to the public, not the types of animals that employers must allow their employees to bring to work. And neither the ADA nor Massachusetts law defines what “service animal” means in the employment context.

Lions and tigers and bears, oh my!

At this point, you may be having a minor panic attack and wondering, “Do I really have to allow my employees to bring their parrots, ferrets, and snakes to work for emotional support?” And you would be justified to worry—because while that scenario is highly unlikely, the law doesn’t absolutely rule it out, and neither can you. As the law stands now, your obligation to allow an employee to use a service animal in the workplace depends not on the type of animal or the nature of the services it provides to its owner but on whether allowing the employee to use the animal constitutes a “reasonable accommodation” for her disability. That means you must approach the issue the same way you would address a request for any other type of work-related accommodation.

You must determine whether and how the employee’s disability is affecting his ability to perform the essential functions of his job, whether the assistance (or mere presence) of the service animal will resolve the problem or problems, and whether allowing the animal in the workplace would be reasonable under the circumstances or would instead constitute an undue burden. But as with any other requested accommodation, an employee who wants to bring a service animal to work is required to do more than just ask. To be sure, she must support her request by identifying her disability or disabilities and explaining (1) how the condition interferes with her ability to do her job and (2) how the service animal will eliminate or alleviate the issue. Furthermore, if the need for the service animal isn’t obvious, you can require her to provide documentation of both her asserted disability and her need for the animal’s assistance.

Keep calm and engage in the interactive process

Of course, the mere fact that the animal in question isn’t a dog or is used solely to provide emotional support will rarely be determinative. But because the accommodation process is intended to be a flexible one—for both employees and employers—you may (and should) take into consideration how the presence of an animal in the workplace will affect your business, your customers, and your other employees. You should weigh any countervailing concerns—and not just basic concerns about the animal itself, like whether it’s housebroken, loud, or potentially violent, but also broader concerns about how the animal might react to or disrupt the health or safety of the work environment or otherwise impede your ability to do business.

In a recent public accommodation decision by the Massachusetts Commission Against Discrimination (MCAD), for example, a dentist’s refusal to allow a patient to hold her emotional support dog in her lap while she was undergoing a root canal was upheld against the patient’s discrimination claim. MCAD accepted the dentist’s need to maintain a sterile and sanitary operating environment, as well as her concerns that the animal’s unanticipated movements and reactions to loud machinery would pose a safety hazard because of the presence of sharp surgical instruments. MCAD v. Unident Dental Center (2014).

But health and safety aren’t the only legitimate concerns employers may have about the presence of animals in the workplace. Consider, for example, a parrot that calms its anxious owner by speaking or singing to him. If the employee works in a library, day spa, or museum, the very thing about the animal that helps him may unduly burden his employer, whose business depends on the workplace being quiet at all times.

On the other hand, the law doesn’t permit employers to simply refuse to allow service animals under any circumstances. You must engage in what the law calls an “interactive dialogue” with the employee to explore possible alternative accommodations and consider whether other changes, limitations, or conditions on the animal’s location or behavior would alleviate your concerns and make the animal’s presence in the workplace reasonable.

Consider the talking parrot again—as part of the interactive dialogue, the employer may ask whether the employee can listen to a recording of the parrot’s voice through headphones. If the employee doesn’t believe the calming effect would be the same, the employer may consider whether he could be relocated to a back office or an off-site location or could reasonably work from home or during nonbusiness hours. If the employee doesn’t interact directly with customers, allowing the parrot at work might be reasonable despite the employer’s need for quiet during work hours in areas open to the public.

Takeaways

As the variety and talents of service animals continue to increase, employers must remain cognizant of the fact that a request by an employee or prospective employee to have such an animal assist him in the workplace must be considered just like any other request for an accommodation under the ADA. The exotic species of the animal or the atypical nature of its services is no basis for an outright refusal to allow the request. Instead, you must approach the situation with an open mind, gather all the necessary information to understand the employee’s disabilities and how the animal will enable her to get her job done, carefully consider whether and how the animal’s presence could affect your workplace, and then open a dialogue with the employee to discuss your concerns and search for a workable compromise.

Even if the answer must ultimately be “no,” if you take those steps before delivering the bad news, you will be in a much better position to defend against a claim that your refusal to allow a service animal in your workplace was discriminatory or unreasonable.

Erica E. Flores is an associate at the firm of Skoler, Abbott & Presser, P.C.  She can be reached at 413-737-4753 or eflores@skoler-abbott.com.

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