Who let the dogs, and other animals, in?
How to manage spread of service, comfort animals in the workplace
Is your business prepared to welcome animals into the workplace? It may not have a choice, as employees with disabilities — ranging from physical limitations to psychological or emotional disorders — may legitimately request the presence of an animal as an accommodation to their disability. Businesses should therefore understand their obligations to address such requests and anticipate pressing issues in implementing these accommodations.
Title I of the Americans with Disabilities Act covers most employers, and generally requires that an employer reasonably accommodate an employee’s disability, subject to limited exceptions. For example, accommodations are considered “reasonable” if they do not create an undue hardship or a direct threat to the health or safety of other individuals in the workplace.
There are two distinct types of animals that could be subject to a request for an accommodation: service animals and emotional support animals, which are also called therapy or comfort animals. A service animal is either a dog or, yes, a miniature horse, that has been specifically trained to perform work or tasks for the benefit of a person with a disability. Examples of service tasks include alerting deaf people to doorbells, guiding blind people down walkways, pulling a wheelchair for a paraplegic, or detecting warning signs for seizures. These are not pets, but are working animals.
Unlike service animals, emotional support animals have not been trained to perform work or tasks; rather, emotional support animals provide a benefit to the handler by their mere presence, most commonly to calm people with severe anxiety.
While Title III of the ADA distinguishes between the two types of animals for purposes of entering a place of public accommodation (like a store or restaurant), Title I of the ADA does not.
Therefore, employers should be prepared to handle requests for any type of animal as a potential reasonable accommodation – that includes pigs, ferrets, or even snakes.
So what should an employer do when confronted with little Fido, Mr. Ed, or Sir Hiss? Employers should first pause, collect themselves and engage in an interactive process with the employee.
The interactive process is a legally required dialogue with an employee to determine whether having an animal in the workplace constitutes a reasonable accommodation enabling the employee to perform the essential functions of their job.
Although Title I does not distinguish between service animals and emotional support animals, requests for service animals are more likely to be considered a reasonable accommodation. If the employee’s disability is not obvious, however, employers may seek documentation supporting the request, including doctors’ notes explaining the need for the particular accommodation. Any such information or documentation relating to the employee’s disability should be treated confidentially and kept separate from their personnel file.
Employers need not always accept a request if another reasonable accommodation exists, or if the animal poses a direct threat.
For example, one federal court ruled that a service dog posed a direct threat in a hospital setting where its “putrid odor,” size and growling detrimentally impacted the health of patients.
If employers permit the accommodation, they should collaborate with the employee regarding all ground rules and put all such expectations in writing. Items to consider addressing include whether the employee bears the costs of clean up or repair due to the animal, whether and when there should be breaks for a walk, or the consequences if the animal barks, growls, bites, or otherwise acts aggressively toward a coworker. If these expectations are not followed, the employer should follow up with written notices to the employee and maintain a comprehensive, confidential record. The employer should also discuss with its landlord, as applicable, the existence of the accommodation to ensure there is full transparency.
Handling effects on employees
A critical part of the interactive process is to determine whether or how the accommodation will be handled with other employees.
For example, employers should educate co-workers regarding the existence of the animal without disclosing the disability of the employee. Employees could choose to disclose the purpose of the animal, but have no obligation to do so, and employers should not make them.
In addition, employers should address whether co-workers have reservations regarding an animal in the workplace. In general, employers cannot refuse a service animal due to a co-worker’s allergies or fears. Rather, it is incumbent on the employer to think creatively and to collaborate with the affected employees – for example, are there ways to limit exposure between the co-workers by staggering schedules or moving locations?
Employers will be well-served to think critically and address all potential issues with an animal in the workplace before granting the requested accommodation.
Brian Garrett, of counsel at McLane Middleton’s Education and Employment Law Practice Groups, is admitted to practice in Massachusetts and can be reached at email@example.com.