Employer Obligation to Accommodate Service and Emotional Support Animals

The following article first appeared in the News & Insights section of Carmody Torrance Sandak Hennessey’s website. It is reposted here with permission.

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Employers periodically receive requests from employees to accommodate their use of a service or emotional support animal in the workplace.

Businesses receive similar requests from their customers. The Americans with Disabilities Act imposes different requirements in these situations.

Employer Obligations

Under Title I of the ADA, employers must provide reasonable accommodations to qualified individuals with disabilities, unless doing so would cause undue hardship.

This duty is broader than the obligations imposed on businesses under Title III of the ADA.

In the employment context, employers must evaluate whether permitting an employee to bring a service animal or an ESA to work would be a reasonable accommodation.

Therefore, if an employee requests to bring an ESA to work to help alleviate symptoms of a mental health condition, such as anxiety or PTSD, employers cannot dismiss such request simply because the animal is not a trained service animal.

Obligations for Places of Public Accommodation

Businesses and nonprofit organizations (as well as state and local governments) that are open to the public, such as retail stores, movie theaters, restaurants, hotels, and other “places of public accommodation” have a narrower duty to permit access to “service animals” that are trained to perform tasks for individuals with disabilities.

They are not required to provide access to ESAs that do not qualify as service animals.

What Is a Service Animal versus an ESA?

The Equal Employment Opportunity Commission defines a service animal as dogs (in some cases, miniature horses) that are individually trained to do work or perform tasks for people with disabilities.

Examples include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, and calming a person with post-traumatic stress disorder during an anxiety attack.

An ESA, by contrast, provides comfort to an individual with a disability just by being present.

ESAs may help alleviate certain symptoms related to a disability, such as depression, anxiety or certain phobias, but they are not trained to perform a specific task.

Also, ESAs are not limited to dogs or miniature horses.

How to Determine If a Dog Is a Service Animal?

The EEOC states that a business may ask two questions: (1) is the dog a service animal required because of a disability; and (2) what work or task has the dog been trained to perform.

A place of public accommodation may not ask or require documentation that the dog is registered, licensed, or certified as a service animal, or require that the dog demonstrate its task, or inquire about the nature of the person’s disability.

What Can Employers Do?

Some general tips for employers:

• An employer may request appropriate documentation of an employee’s restrictions and the need for a service animal/ESA, if the disability and need for accommodation are not obvious;
• Employers must engage in an interactive process with the employee to assess the accommodation request and whether it would pose an undue hardship or present a safety issue. Employers can consider any training the animal has received, if the animal will behave appropriately in the workplace, and other potential safety, health, or operational issues.
• If an employer cannot reasonably accommodate the employee’s request, it must consider other reasonable accommodations such as remote work or a modified work schedule.
• Employers should advise employees to not distract the animal by, for example, petting or feeding it.
• Employers should not disclose an employee’s disability or the specific reason for the service animal/ESA.

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About the author: Nick Zaino is a partner with Carmody Torrance and a co-leader of the firm’s Business Services Group.