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Dogs, Cats & Other Creatures Can Be Service Animals or Pets, But Usually Not Both!

For nearly 30 years, the Americans with Disabilities Act (ADA) has guaranteed reasonable access to – and equal rights for – disabled Americans. The ADA has separate sections that set forth rights for employees on the one hand (Title I of the Act) and visitors, guests, customers, clients, and patients of public accommodations (Title III of the Act).

Meanwhile, the last 18 months have drastically altered how and where many employees work. Even before the pandemic, an increasing number of employers have implemented “pet policies” and welcoming employees’ pets into their facilities – either on a sporadic or full-time basis. Many believe employee health, wellness, and productivity benefit from such pet policies, even though there is no legal mandate for offering this perk. To the extent that many employees have been working remotely and grown accustomed to spending their working time with pets on their laps, at their feet, or nearby, we are seeing an increased desire from employees returning to the office or facility for pet policies. Employers have mixed feelings, of course, but popularity at the corporate level is trending upward.  Importantly, service animals (and even true “emotional support animals” used to accommodate mental health conditions) are not merely “pets”. Nor can any traditional pet serve as a service animal in the legal sense – although they will be treated by their owners/users as nicely as pets would be treated!

Again, pet policies are not contemplated or governed by any law or regulation in the United States (not yet anyway). However, Title III and its regulations promulgated by the Department of Justice (the federal agency that enforces that section of the Act) have long provided detailed regulations and guidance for handling public accommodation service animal requests. That is why there is relatively little debate or problem with the service animals you see in retail shops, restaurants, grocery stores, movie theaters, sports venues, hotels, and hospitals. 

On the other hand, the Equal Employment Opportunity Commission (the federal agency that enforces Title I), has never issued regulations or detailed guidance on service animals in the workplace. Almost overnight, however, the number of employee requests – and the inevitable discrimination charges being filed – for service animals has exploded. Unlike a dog’s relatively quick visit to a grocery store, restaurant, or doctor’s office, an animal’s daily and prolonged presence in a workplace setting poses much more difficult questions and logistics.

Importantly, under Title III, a service animal must be either a dog or a miniature horse, and animals providing “emotional support” are not included in the definition or under the protection of the law. And public accommodations may usually only ask two questions to verify the animal is a service animal: (1) Is the animal needed due to a disability? and (2) What work or tasks has this animal been trained to perform? Of course, various state laws differ on these issues.

When dealing with employee requests for service animals under Title I, it is important to know that there is no definition of “animal,” which means nothing limits a workplace service animal to a dog or miniature horse. And “emotional support” animals are not excluded either and must be allowed if reasonable and required for a disability. While the types of animals allowed are much broader under Title I, the questions allowed by an employer are much broader as well. Accordingly, a full ADA interactive process can (and must) take place, and that should include disclosure of medical records and information, animal training records and information, and any other information that would facilitate a discussion between the employee and employer to ascertain whether the employee has a qualifying “disability” (thereby triggering the ADA) and whether and how the animal will assist the employee to safely and effectively perform their job duties. Again, just like the Title III obligations, state laws on employee-related service animal requests often differ from federal law.

An employer should always start with its normal ADA forms and procedures, but there will usually be a few rounds of back-and-forth questions and answers concerning the employee’s needs, the animal’s qualifications, and services, and what the day-to-day logistics will be. If the interactive process works well, the result should be some agreement on whether, how, and how often the animal is brought to work and used by the employee to assist him/her with succeeding at work. The employer can require any service animal to be always housebroken and under the control of its owner, e.g., some combination of being harnessed, leashed, or crated.  All concerns, fears, and allergies of co-workers should be addressed as well. Often it is best to agree to allow the animal at work for a trial period, i.e., 30 days, to evaluate whether the accommodation is working for both the employer and the employee (and, to some extent, for co-workers and any customers, guests, clients, etc.). Then, adjustments can be made if necessary, or the accommodation can be denied altogether going forward if it is determined to be inappropriate, ineffective, and/or not legally required.

The best place to start is making sure someone at the employer doesn’t deny the accommodation request without having an open-minded discussion with the employee about what might be reasonable and effective. The goal is a solution that will support the employee and make them a productive and successful employee in a way that does not disrupt the business operations. 

James M. Paul
Shareholder
Ogletree Deakins Law Firm