So a monkey, a parrot and a pot-belly pig all get on a plane.  It’s not the start of a joke, it is the expanded policy for emotional support pets for domestic air carriers.  In 2003, the Department of Transportation (DOT) allowed even more types of pets to qualify as a reasonable disability accommodation on airplanes to provide emotional support for their owners.  Lately, we are observing a similar increase in employee requests to bring service and/or support animals to work.  Service animals include animals such as seeing-eye or guide dogs and miniature horses that have been trained by licensed professionals.  They also include animals that have been trained to assist with certain physical tasks such as picking up objects.  Signal animals are those that have been trained to assist the hearing impaired or sense and alert their owners to oncoming bodily change.  As long as the animal receives training related to the needs of its disabled owner and performs one or more tasks on behalf of its owner, it qualifies as a service animal.  Comfort or support animals, which generally have no specialized training, provide emotional support to their owners just by being close.

Although employers are required to consider allowing employees with disabilities to bring service and/or support animals to work as a reasonable accommodation, the Americans With Disabilities Act does not provide specific guidance on this issue.  The EEOC has confirmed that employers are not required to automatically allow employees to bring service or support animals to work.  Instead, an employer should process any request by an employee to bring a service or support animal to work as it would other reasonable accommodation requests.

Both state and federal laws reject a cookie-cutter approach to disability reasonable accommodation assessments and instead require an individualized analysis of what would be reasonable on a case by case basis.  As part of the assessment, the first step is to identify whether the animal is needed for service or for support.  Then, an employer should consider why the service or support animal is needed as a reasonable accommodation for the employee to perform one or more essential functions of the job and whether there are other available accommodations that can also effectively address the issue at hand.  An employer should obtain medical documentation from the employee to support the need.

The EEOC and the courts have consistently held that while an employee is entitled to a reasonable accommodation to perform the essential functions of the job, if more than one effective reasonable accommodation is available, then the employer can select the accommodation the employer prefers.  Both the EEOC and the courts expect an employer to engage in an interactive process with the employee to assess reasonable accommodations.  An employer will also need to consider safety issues and addressing issues that coworkers may have, such as allergies or fear of the animal.

This spring, the EEOC sued an employer, CRST International.  The EEOC claims that CRST refused to employ Leon Laferriere as a truck driver because of his need to have his support dog present in his truck while working.  CRST asserted that it had a “no pet” policy.  Laferriere’s psychiatrist prescribed the use of a support dog as an effective way for Laferriere to manage his PTSD symptoms that developed as a result of his time in active military service.  A combat veteran with a diagnosis of PTSD, he has difficulty with self-soothing and suffers from debilitating nightmares that make him relive horrible visions.  Without the use of the support dog, the EEOC asserts that he would be on heavy medication that could impair his ability to drive at peak alertness.

 Employers must make a good-faith effort to determine whether and to what extent accommodation requests, including animal requests, may be feasible.  It is essential that the employer and employee interact and discuss the situation as part of the assessment.  Because this is the beginning of a trend, it is important to note that the employers who experience legal trouble over the issue typically are dismissing accommodations outright without engaging in an individualized assessment.

It is also important to remember that in the workplace, this type of accommodation is only available to an individual with a disability.  Although the airlines have taken an expansive view of what qualifies as a comfort animal that allows a variety of pets to keep travelers calm, employers need not have policies that mirror what the airlines are doing as the legal landscape in the workplace is a different beast.

If you have further questions about this issue, please contact Peter Bennett (pbennett@charlesc48.sg-host.com) or Rick Finberg (rfinberg@charlesc48.sg-host.com) of The Bennett Law Firm.