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Animals in the Workplace

—RMZ

Animals in the Workplace

From peacocks on planes to canines in the classroom, emotional support animals, or “comfort” animals, are raising a lot of questions about where it is appropriate, or legally required, to allow animals. Employers are left asking what to do when confronted with the possibility of dog, cat, or even a potbelly pig clocking in for a “nine-to-five.”

While some offices are welcoming the idea of bringing your pet to work, in most offices “no pet” policies are still the standard. But what if the animal is more than just a pet? Service animals and emotional support animals (ESA) help owners with physical and mental disabilities achieve greater day-to-day freedom and comfort. Federal legislation, like the Americans with Disabilities Act (ADA), and Illinois laws, such as the White Cane Law and Service Animal Access Act, both designate these animals with rights beyond those of pets.

The ADA defines a service animal as “a dog that is individually trained to do work or perform tasks for a person with a disability.” Illinois law states under 720 ILCs 5/48-8  that a “service animal” means a dog or miniature horse trained or being trained as a hearing animal, a guide animal, an assistance animal, a seizure alert animal, a mobility animal, a psychiatric service animal, an autism service animal, or an animal trained for any other physical, mental, or intellectual disability.” The ADA and Illinois laws require service animals be allowed access to public places that pets are usually not allowed. Other laws allow for the required access of service animals on airplanes and equal fairness in access to housing.

Emotional support animals are not defined in the ADA or Illinois state law. The Department of Housing and Urban Development code provides some insight, describing an ESA as a companion animal that a medical professional has determined provides a therapeutic benefit for an individual with a mental or psychiatric disability. ESAs are also not limited to species and can range from dogs and cats to snakes and mice. ESAs are not required to be given access to public accommodations under the ADA or Illinois law.

What does all this mean for employers when an employee asks if their dog can come to work? Well, it depends. Laws requiring access to service animals do not specifically discuss the work environment and ESAs are not even required to be given access to public accommodations in Illinois, but that doesn’t necessarily mean either animal may be banned from the office. Title 1 of the ADA requires employers with 15 or more employees to make “reasonable accommodations” for known physical or mental limitations of an employee or applicant with a disability. 42 U.S.C. §12111(5). Allowing employees to bring service animals and possibly even ESAs to the office may be considered reasonable accommodations to make for a disabled employee.

A person is considered disabled under the ADA if he or she (1) has a physical or mental impairment that substantially limits one or more major life activities or (2) has a record of such impairment. 42 U.S.C. §12102 (1). Support for allowing ESAs as reasonable accommodations might be inferred from the definition of physical or mental impairment under 23 C.F.R. §1630.2(h) which includes emotional or mental illness. If an employee is classified as disabled as described above, there must be an attempt to make reasonable accommodations to overcome the limitations of their disability.

Labor regulations define reasonable accommodations as (i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or (ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or (iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities. 23 C.F.R. §1630.2(o)(1). When an employer learns that an employee or applicant may need a reasonable accommodation, the employer has to engage in what the court refers to as an “interactive process” with the employee to understand the employee’s limitations and come up with potential accommodations that can overcome these obstacles.

Employers are not required to provide a reasonable accommodation when the employer can demonstrate that the accommodation would impose an “undue hardship” on the operations of the employer, or when a requested accommodation would pose a direct threat to the health or safety of the employee, other employees, or the public. 42 U.S.C. §12112(b)(5)(A); 23 C.F.R. §1630.15. This may be comforting to employers because, while a dog in the office may not cause undue hardship or a direct threat, an employee’s emotional support python may demonstrate a valid reason for denying it access a reasonable accommodation.

Decisions on allowing service animals and ESA’s in the office are not one size fits all determinations. The facts and context of each situation can lead to different answers in an area of law that is unclear at the moment. Employers should work in good faith with employees who have disabilities in an “interactive process” to determine reasonable accommodations that will help the employee overcome limitations caused by disability. If this process leads to the determination that a service animal or ESA in the workplace is the best option, it is probably wise to allow the employee’s animal in the office.