Must An Employer Accommodate An Employee Who Wants To Bring An ‘Emotional Support Animal’ To Work?

Labor & Employment Lawyers - New Jersey Labor and Employment Law Firm
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Recently, the Washington Post reported that WallyGator, a 70 pound, 5½ foot reptile with razor sharp teeth, is an emotional support animal that has helped its owner deal with depression.  His owner insists that WallyGator, who accompanied him to the clinic where he received weeks of radiation treatment for prostate cancer, enabled him to deal with the cancer diagnosis and treatment as well as with severe depression over the loss of family members.

What if his owner wanted to bring WallyGator to work as an accommodation?  The Americans With Disabilities Act requires an employer to accommodate the “known physical or mental limitations” of a “qualified individual with a disability,” unless the “employer can demonstrate that the accommodation would impose an undue hardship.”

Although the ADA statute and regulations prohibiting discrimination in employment do not address or define a “service animal” or an “emotional support animal,” the regulations prohibiting discrimination by public accommodations, such as restaurants, hotels and stores, distinguish between a “service animal” and an “emotional support animal.”  According to those regulations, a “service animal” is “any dog that is individually trained to do work or perform tasks for the benefit of the individual with a disability . . . The work or tasks performed by a service animal must be directly related to the individual’s disability.”  The classic case is the seeing-eye dog.

Unlike a “service animal,” an “emotional support animal” simply provides a sense of comfort, or well-being or safety.  Thus the key difference between a “service animal” and an “emotional support animal” is whether the animal has been trained to perform a specific task or job directly related to the person’s disability.  Behaviors such as cuddling on cue, although comforting, do not qualify.  The tasks need to be specifically trained to mitigate a particular disability, not something instinctive the dog would do anyway.

But because the distinction between a “service animal” and an “emotional support animal” is not found in the statute or regulations prohibiting discrimination in employment, employers are well advised to assess whether permitting an “emotional support animal” at work is reasonable or not.

In Maubach v. City of Fairfax, the employee was one of two night time dispatchers responsible for answering emergency calls and dispatching first responders.  She worked in a bulletproof glass enclosed space with highly sensitive equipment in the city’s emergency operations center.  The employee, who experienced panic attacks, asked to bring her dog to work because having her dog at work she claimed would help her avoid panic attacks.  Her supervisor denied her request.

The employee then visited a professional counselor and discussed using her dog as an emotional support animal.  Her counselor thought it was a sound idea and wrote a letter to the employer recommending that the employee be permitted to bring her dog to work. The employer agreed to allow her to do so on a temporary basis.

A co-worker who had been on vacation returned to work to find clumps of dog fur and dander in a dog bed in the emergency operations center that the employee’s dog had been using while the employee was at work.  The co-worker was allergic to dog fur and dander as was the day shift operator.  Both experienced allergic reactions including sneezing, watery eyes, coughing and congestion.  The co-worker’s allergic reactions were not the only problems with the dog.  The employee left the emergency operations center to walk her dog while she was on shift.

The employer banned the dog from the workplace and the employee refused to return to work without her dog. She submitted an additional recommendation from her counselor and insisted that her dog was a registered emotional support animal. She also sought and received a recommendation from a psychiatrist that she be permitted to bring her dog to work as an accommodation for her panic attacks.

The employer offered to transfer the employee to the day shift, which was less stressful.  It also offered to permit her to bring a hypoallergenic dog to work.  The employee still refused to come to work and she was terminated.  She sued, claiming that the employer failed to accommodate her disability.

The court granted summary judgment to the employer and dismissed the claim.  The court concluded that the employee failed to participate in the interactive process seeking an accommodation because she insisted that bringing her dog to work was the only accommodation that she would accept. In addition, the court held that the employee’s request to bring her dog to work was an undue hardship because it required other employees to suffer from allergies.

Although the employer prevailed, the case teaches an important lesson: a request to have an emotional support animal at work cannot be dismissed out of hand.  It does require an analysis to determine whether granting such a request would be an undue hardship because of the issues that would arise with the presence of an animal in the workplace.

The failure to consider an emotional support animal as an accommodation is illustrated in EEOC v. CRST International, Inc.  The employee, a truck driver with post-traumatic stress disorder, sought to have his dog on the truck with him to provide him with emotional support.  However, his employer had a ‘no pets’ policy that it refused to reconsider.  The court held that an employer refusing to consider an emotional support animal violated the ADA.

In sum, a request to have an emotional support animal at work as an accommodation to the employee’s disability must be weighed and considered as any other request for an accommodation. The request may be reasonable or it may be an undue hardship. But the employer is required to go through an interactive process to make that assessment.


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