A PIG flies on a commercial plane and forgets its manners. A baby kangaroo enters McDonald's, catches a flick at the cinema, and attends church. A tarantula named "Sam" tries to enter the recreational facility at a condominium complex. As outlandish as these stories may seem, they are all real examples of recent occurrences. There has been an influx of reports of furry, feathered, and scaly creatures accompanying their owners 24/7 for a variety of reasons, including for medical and mental health purposes. It should be no surprise that this trend has extended into the workplace.
While employers have no legal duty to accommodate employees' pets at work, a 2015 Society for Human Resource Management survey found that 8% of American employers permitted employees to bring their pets to work, which was up from 5% in 2013. There is a gray area between the classification of animals as pets, service animals, and emotional support animals ("ESAs"), which courts have said:
permits no identifiable stopping point: every person with a handicap or illness that caused or brought about feelings of depression, anxiety or low self-esteem would be entitled to the dog of their choice, without regard to individual training or ability. And if certain people liked cats, fish, reptiles or birds better than dogs, there would be no logical reason to deny an accommodation for these animals.1 Recently, more and more employees are attempting to bring their service animals and ESAs to work. Whether or not an employer has a duty to accommodate for service animals and ESAs is still a developing area of law. As of January 2019, the National Service Animal Registry (NSAR) had registered 191,138 service animals and ESAs (for a fee).2 Issues regarding the use of ESAs became hot national news following two highly publicized incidents in 2018. In February 2018, a woman claimed she was forced to flush her emotional support hamster down the toilet to board a plane, and in October 2018, another woman was tossed from a flight for bringing her emotional support squirrel, which was all captured on videotape.
While Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination against individuals with disabilities, neither the statute nor the Equal Employment Opportunity Commission (EEOC) have specifically addressed the use of service animals and ESAs for medical or mental health reasons. The ADA requires employers to provide a "reasonable accommodation" to disabled employees or applicants, which can include allowing such an individual to bring his/her service animal to work.3
Unfortunately, there are few (and often inconsistent) court decisions to guide attorneys, business owners, and human resource professionals on how to handle the recent, emerging phenomenon of ESAs in the workplace. Employers are left wondering how to deal with the influx of reasonable accommodation requests by employees to bring their ESAs to work. This is a concern of particular importance, because incorrectly denying an employee's request to bring a service animal or ESA to work can expose employers to liability and potential awards for compensatory damages, injunctive relief, and civil penalties.
Service Animals Versus ESAs
The first consideration for an attorney in evaluating a request for an accommodation is to distinguish between what is a "service animal" versus an ESA. While Title I of the ADA (prohibiting discrimination in employment) does not address or define "service animals," Title III of the ADA (prohibiting discrimination by public accommodations) does. 4 Title III regulations may be considered persuasive authority, to the extent those regulations are not inconsistent with Title I regulations.5
Title III requires public accommodations, such as hotels/motels, restaurants and stores, to allow service animals entry.6 According to Title III regulations, a service animal is defined 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.... The work or tasks performed by a service animal must be directly related to the individual's disability.7 The definition limits service animals to dogs and, in certain circumstances, miniature horses.8
On the other hand, ESAs are not defined by any federal law. The ADA and its implementing regulations do not address ESAs, and as such, ESAs are not required entrance to public accommodations. Unlike service animals, ESAs are not trained to perform specific tasks, but simply provide a sense of comfort, safety, or calmness to their owner. 9 In addition, whereas service animals are limited to dogs or miniature horses, ESAs can be any kind of animal, regardless of species.
Under Title I of the ADA, private employers with 15 or more employees and state and local government employers, regardless of size, are required to make "reasonable accommodations" for the known physical or mental limitations of an employee or job applicant with a disability. 10 A person is considered disabled for the purposes of requesting a reasonable accommodation...