June 24, 2019 | Uncategorized
We love our four-legged friends here in Maine. You’ll often see people bring their dog along with them on their adventures, whether that be to the beach, the lake, the mountains or even a brewery patio in Portland. Which makes sense, many of us recognize and cherish the emotional support and companionship our pets provide.
But for some, such as visually impaired individuals who use a Seeing Eye dog, these animals serve as more than a loyal pet. Many people require a bona fide service animal to perform routine daily tasks or cope with a serious medical condition.
With service animals being used in more situations — like psychiatric service dogs — and the emergence of emotional support animals, determining the difference between pets, service dogs and emotional support animals has taken on added significance.
According to the American Kennel Club (AKC), the distinction between a service dog and an emotional support animal (ESA) is in the training. The AKC defines a service dog as one that “has been trained to perform a specific task or job directly related to the person’s disability,” as opposed to tasks that are instinctive to the dog even without training. And true psychiatric service dogs are trained “to detect the beginning of psychiatric episodes and help ease their effects.”
This isn’t to say that ESAs can’t be helpful. They can fill critical roles in the lives of disabled people, and that’s the crux of the matter for employers.
The Americans with Disabilities Act (ADA) provides specific answers on the issue of service animals, but only in terms of public accommodations and the provision of services and programs by government agencies. Service animals and ESAs aren’t defined in the context of private employers. So when it comes to determining whether an animal can provide a level of support that’s truly therapeutic, you’re on your own.
Even so, your obligations as a private employer when it comes to allowing an emotional support animal in the workplace fall under the heading of a “reasonable accommodation” according to the ADA framework.
In other words, you may be required to accommodate employees who, due to some form of disability, request changes to standard procedures that would allow them to continue working. The key is whether the request is “reasonable” based on the individual’s need and your ability to make the accommodation. Remember, a job accommodation request for any kind of disability under the ADA is considered reasonable if it doesn’t impose an “undue hardship” on your organization.
Undue Hardship Standard
According to the Equal Employment Opportunity Commission (EEOC), which is the primary enforcer of the ADA, “every request for reasonable accommodation should be evaluated to determine if it would impose an undue hardship.” Here are factors to consider:
- Nature and cost of the accommodation needed
- Overall financial resources of the business, the number of employees and the effect on expenses and resources of the business
- Impact of the accommodation on the business
As with other disability-related accommodation requests, it may be a good idea to require employees to seek permission in writing if they want to bring an ESA to work, that way you’ll have a record of it. The request could include a questionnaire about the temperament and house-training habits of the animal and proof of necessary shots, such as a current rabies vaccination. But remember: Even if the accommodation request is initially made orally, you have been put on notice, and generally can’t brush it off.
When you get a request, the EEOC says that you and the employee “should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation.” If in doubt, you can also ask for some form of documentation that would give you confidence that the need is real.
Once you’re satisfied that the employee’s request is valid, you’ll need to consider what kind of request for an ESA you could “reasonably” accommodate. For starters, it’s probably a bad idea to refuse a request based solely on the existence of a “no pets allowed” rule. However, you can require the animal to be well-behaved and for the employee to attend to the animal’s needs to use the “facilities.”
Reasonable accommodations that could address other possible concerns about the presence of an ESA at work might include providing the employee with an enclosed office (assuming of course, that the employee does office work). Or you may be able to limit the animal’s territory to one area of the workplace in order to reduce the impact on employees who may be bothered by the presence of the ESA. Another reasonable accommodation may be to consider an extra air filter if questions come up about the animal’s odor or shedding.
If you do arrive at a workable strategy for the ESA to be at your workplace, it doesn’t have to be a permanent arrangement. To play it safe, make it clear that you’re willing to give it a try for a specified trial period. After that, reassess its impact and then decide whether to continue.
During this trial period, consider others in the office as well. Suppose an employee with an ESA requires a separate office. You may find that designating a private office to that worker may make other offices uncomfortably crowded. It could also cause resentment among other employees who have given up their space. Keep in mind, if problems arise, you can always modify the accommodations.
As wonderful as it can be for some people to have pets in the workplace, not everyone feels the same way. You could find yourself in a balancing act between strong feelings on both sides. The bottom line is, if you’re faced with a request to allow an animal into the workplace, you stand a better chance of arriving at a good solution if you begin the dialog by assuming the request has been made in good faith.