And They Call It Puppy Love

What do you do if an employee asks to bring an "emotional support dog" to work?

Well, before you growl in response—be aware that allowing an employee to have a trained service dog or trained "emotional support dog" present at work may be a reasonable accommodation under the Americans with Disabilities Act (ADA). However, before making a decision as to whether it is a reasonable accommodation, the employer should go through the process of determining whether the employee is disabled (as defined by the ADA, as amended), whether she needs an accommodation to perform the essential functions of her job, and if so, whether the allowance of a trained service dog is a reasonable accommodation, will it create an undue hardship for the employer, or are there other reasonable accommodations available.

Service animal vs. emotional support dog—for public accommodations

Under Title III of the Americans With Disabilities Act, which applies to public accommodations, the regulations make a distinction between "service animals" and "emotional support" animals. The Americans With Disabilities Act defines "service animal" as follows:

Service animal means 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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.

28 C.F.R. §36.104 (emphasis added). Thus, under this definition, emotional support animals, comfort animals, and therapy dogs are not "service animals" under Title III of the ADA.

The employment context

However, no such regulation exists under Title I of the ADA, which applies to employment. Furthermore, the EEOC has no specific regulation or guidance pertaining to service dogs or emotional support dogs in the workplace. This is a newly evolving area of disabilities law.

In fact, just this month, the EEOC filed a lawsuit in Florida on behalf of a truck driver trainee alleging that he was illegally denied use of an emotional support dog as an accommodation for his PTSD and mood disorder. (EEOC v. CRST Int'l, M.D. Fla., No. 3:17-cv-00241, complaint filed 3/2/17). Specifically, the EEOC alleges that freight company CRST International Inc. and a subsidiary violated federal disabilities discrimination law when they withdrew their job offer to Leon Laferriere because he asked if he could drive with his service animal. The EEOC further alleged that the companies also failed to discuss other potential job accommodations with Laferriere and instead dismissed him from their new driver orientation program in retaliation for his requesting help with post-traumatic stress disorder syndrome and mood disorder. This lawsuit is in the very early stages, so it is too soon to tell what kind of legal precedent it may set. However, it does show that this is an issue on the EEOC's radar for enforcement.

The takeaway: There is a big difference between allowing a truck driver to have a dog with him in a truck, and allowing an office employee to bring a dog to work in an office environment. In addition to evaluating the situation under the ADA, there are also logistical concerns, such as when and where the dog can relieve itself, where the dog can stay, and how to handle other employees who may have dog allergies, among other things. If an employee makes a legitimate request for a service animal or "emotional support" dog in the workplace, we recommend that an employer consult with experienced employment law counsel to determine how to respond to the request.