ADA excludes emotional support animals as service animals

Posted by Charles Middleton on 10/17/2018

Q: There's a growing trend of people wanting to bring their emotional support animals (cats, pigs, peacocks, dogs, etc.) to work to assist them to cope with mental health issues. What are the details behind this trend and what does the Americans with Disabilities Act (ADA) require?

A: The ADA guidelines identify the significant difference between an emotional support animal and a service animal. The difference between the two types of animals is that the service animal is trained to perform a specific function for its owner (i.e. seeing-eye dogs or dogs that can warn their owner when they are about to have a stroke), while emotional support animals aren't trained for any particular function. Therefore, an inquiry as to whether a pet can be brought to work should start with the nature of the animal and its relationship to the employee. The animal must be the accommodation the employee needs to perform the essential functions of his or her job. Simply feeling less stress by having your pet at work isn't enough to turn an emotional support animal into a service animal. The ADA protects the rights of people to bring service animals to work or to public places, but emotional support animals don't qualify as service animals under the ADA. Q: What circumstances should employers consider when deciding to allow emotional support animals in the workplace?

A: While an emotional support animal positively can impact the owner, it also may negatively impact others in the workplace. This causes conflict between the need for an accommodation and disruption of the workplace. For example, look at the effect of a dog on a co-worker's allergies. If it's a service dog, allergies of co-workers aren't a legitimate basis for not allowing a service dog at work. Instead, employers must make accommodations for both parties, by assigning them to different locations within the room or different rooms in the facility. The same requirement isn't made for emotional support dogs, who also may impact co-workers negatively. Additionally, service animals must be tethered, when possible, and must be in control. They also must be housebroken. This should be the minimum requirement if an employer decides to allow an emotional support animal at work. Safety issues also should be considered, such as distracted driving while on the job caused by an emotional support animal, the emotional support animal biting a co-worker or member of the public, and other employees with animal phobias who may be negatively impacted by the animal's presence. Q: By what legal considerations must employers abide?

A: Now that an employer has been advised of an employee's mental health condition, an accommodation discussion needs to be had with the employee. It's the responsibility of the employer to ask: are there other accommodations that would reduce their stress? What does their doctor recommend? Is it an undue hardship to the employer to allow the pet at work? Best practices say it takes more analysis than just saying if the animal isn't a service animal, the employer doesn't have to allow them at work. Remember, the ADA still requires “reasonable” accommodations be made for a person's mental health problems. “Reasonable” will be based on job duties, job location and the emotional support animal in question. The bigger the employer, the more likely, absent legitimate safety concerns, an emotional support animal is a reasonable accommodation.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoman, October 17, 2018