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Service or emotional support animals as ADA accommodations?

September 4, 2018

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

From the service dog to the emotional support peacock and ferret, employers are receiving more requests from employees who want to bring these animals to work.  Title I of the ADA prohibits disability discrimination in the employment context and requires employers to provide reasonable accommodations to applicants and employees.  But Title I is silent in reference to service and emotional support animals.  

In 2011, the Department of Justice (DOJ) issued final regulations specifically around service animals with respect to Title II and Title III of the ADA.  Under these regulations, a service animal is defined as a dog that has been individually trained to do perform tasks for an individual with a disability.  The task(s) performed by the dog must be directly related to the person’s disability.  Examples include:

Guide Dog or Seeing Eye® Dog1 is a carefully trained dog that serves as a travel tool for persons who have severe visual impairments or are blind.

Hearing or Signal Dog is a dog that has been trained to alert a person who has a significant hearing loss or is deaf when a sound occurs, such as a knock on the door.

Psychiatric Service Dog is a dog that has been trained to perform tasks that assist individuals with disabilities to detect the onset of psychiatric episodes and lessen their effects. Tasks performed by psychiatric service animals may include reminding the handler to take medicine, providing safety checks or room searches, turning on lights for persons with Post Traumatic Stress Disorder, interrupting self-mutilation by persons with dissociative identity disorders, and keeping disoriented individuals from danger.

SSigDOG (sensory signal dogs or social signal dog) is a dog trained to assist a person with autism. The dog alerts the handler to distracting repetitive movements common among those with autism, allowing the person to stop the movement (e.g., hand flapping).

Seizure Response Dog is a dog trained to assist a person with a seizure disorder. How the dog serves the person depends on the person’s needs. The dog may stand guard over the person during a seizure or the dog may go for help. A few dogs have learned to predict a seizure and warn the person in advance to sit down or move to a safe place.

The DOJ then made clear that emotional support animals do not count as service animals.  Specifically, the DOJ stated that an emotional support animal is not the same as service animals as they have not been trained to perform a specific job or task.  However, some state or local governments have laws that allow people to take emotional support animals into public places. 

Michigan’s service animal law uses the same definition as the DOJ.  Under Michigan law, owners of public accommodations are not required to allow emotional support animals; only service animals.

Therefore, if an employee requests to bring his or her service or emotional support animal to the workplace, it should be considered like any other accommodation request.  In other words, the employer should engage in an interactive discussion about the request.  The employer should request medical documentation that supports the request and documentation that shows that the animal meets the requirements of a service animal.  The service animal should be trained to perform in a workplace environment.  Yet precedent matters, and the employer should be consistent with past practices.  If the request is a first time for the employer, the question of whether having a service animal is a hardship to the employer is one that needs to be determined.  For example, if the service animal is for an office employee, it is less likely to be a hardship to the employer.  If for a line worker, it may likely be.
The employer could allow the service or emotional support animal to be brought to work on a trial basis. If it becomes apparent that the animal imposes an undue hardship—because it cannot be controlled and behaves aggressively towards other employees, for example—the employer can terminate the trial period and engage with the employee to determine whether another accommodation is available.  

Until there is more guidance on this specific issue, it is still a murky area for employers.  There is a case starting to wind its way through the courts.   In 2017, the EEOC filed a lawsuit against CRST for ADA discrimination.  A candidate applied for a truck driver position with CRST in Fort Myers and signed up for the drivers’ certification course with CRST’s partner training company. After being admitted to the truck driver training program, but prior to beginning it, the candidate disclosed his disabilities and use of a trained service dog to help control anxiety and to wake him from nightmares caused by post-traumatic stress disorder (PTSD). Although the candidate successfully completed the training program, he was denied employment due to their “no pet” policy. 

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