Because of how often we hear from clients regarding requests for “emotional support” animals to accompany employees to work, we figured a refresher on how to handle these types of situations would be appreciated. While we do not expect many employees to request to bring a “service hippo” to work, we have certainly been faced with situations where “non-traditional” animals have been requested to accompany individuals both in public accommodation situations, and in the workplace.
First, note that under the ADA “service animal” has a limited definition, “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.” 28 CFR 36.104. While state or local laws may expand on the definition of a service animal, under federal law, dogs and a limited class of miniature horses (that are able to satisfy a select list of criteria) are the only animals that are going to fall within the “service animal” definition under federal law. Sorry hippo—it’s just not your year.
Many employers we talk to automatically insist that animals in the workplace would be impermissible—either from a safety or a health/welfare standpoint. We remind employers that each request for an accommodation should be followed by an interactive dialogue on potential accommodations. As may not be surprising, the EEOC will not agree that a flat out denial is appropriate—no matter the industry.
Let us use the food-service industry as an example. While many rational people would argue that of course an employee cannot bring his/her service dog into the kitchen while preparing food, the answer is not so clean-cut. While the employee may not be able to have the service animal in the kitchen, he or she may still be able to permissibly keep the dog at work if it does not create an undue burden. FDA Food Code Section 2-403.11 prohibits an employees’ handling of animals but permits employees to use service animals. In Section 6-501.115, the Code provides that service animals may be permitted in areas that are not used for food preparation, and the employee may handle the service animal as long as after handling the service animal the employee washes his or her hands for at least 20 seconds using soap, water, and vigorous friction on surfaces of the hands followed by rinsing and drying per FDA Code section 2-301.12.
Like all situations under the ADA, employers should engage in an interactive dialogue to determine reasonable accommodations for the employees’ disability—understanding that the allowance of a service animal in the workplace may, in fact, be reasonable. Insofar as it is not, employer should be able to set forth the exact reasons why the request is not reasonable or would adversely affect a core function of the employees’ job. If your company is dealing with a “hairy” service animal issue, give a member of Verrill Dana’s Labor & Employment Practice Group a call to discuss more.