By Cynthia Gentile, J.D., SHRM-CP , Faculty Member, Dr. Wallace E. Boston School of Business and
Neil Goldsmith, partner, Lathrop GPM
The Americans with Disabilities Act, or the ADA, covers more than just employment, it requires employers to make reasonable accommodations for employees with disabilities. This can include allowing animals in the workplace to help an employee perform job functions. In this episode, APU professor Cynthia Gentile talks to employment lawyer Neil Goldsmith about the difference between a service animal and an emotional support animal. He also discusses the range of important questions employers need to ask an employee about their disability and how the animal would allow them to perform essential functions that they couldn’t otherwise perform.
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Read the Transcript:
Cynthia Gentile: Welcome to the podcast. I’m your host, Cynthia Gentile. Thank you for joining me. Today, I’m excited to welcome back attorney Neil Goldsmith to the podcast. Neil’s a partner at Lathrop GPM, a full-service law firm with nearly 400 attorneys located in 14 offices from coast to coast. Welcome Neil, and thank you so much for coming back to the podcast for a third time.
[Listen to a previous episode: Shifting Landscape of Workplace COVID-19 Vaccine Mandates]
Neil Goldsmith: Happy to be back and feeling like a true regular.
Cynthia Gentile: I’m excited to talk to you today about a topic close to many of our hearts, our pets. I could talk for hours about my fabulous dog, Zach, my pandemic puppy that we got last year, my sweet cats, Ted and Leo. But since no one really wants to hear me gush over my furry family members, instead, we’re going to focus on an interesting aspect of employment law, and that is workplace accommodations around service animals.
But I feel like at least for me, that there’s some confusion around differences between an emotional support animal and a service animal. I heard recently that a report circulated about a move to add an emotional support dog to the Capitol Police force to help with officer’s PTSD after the January 6 attack on the Capitol. So legally speaking, what is the difference between an emotional support animal and a service animal?
Neil Goldsmith: Well, before we get into that really important question, I do need to give a shout out to my pandemic puppy, Bucky. He joined us on July 1st. He’s an English Doodle. He’s wonderful. And I guess this might be the only podcast where it’s okay if we hear a bark in the background.
Yes. There’s a lot of confusion out there about what is a service animal and particularly what is a service animal as compared to an emotional support animal? Are they the same? Are they different? What’s the significance?
So before I answer that question, we have to look at the ADA, Americans with Disabilities Act. What many people don’t realize is the ADA covers more than just employment. There are actually three different titles of the ADA Title 1, Title II, Title III.
We as employment lawyers, we often focus on Title 1 of the ADA because that’s what governs employment. However, Title II and III govern and prohibit disability discrimination by public entities and in public accommodations. So, where we find the definition of service animal is not in Title I it’s in titles II and III, and that is defined as “any dog that is individually trained to do work, perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability.”
This is different from an emotional animal. As its name suggests, the emotional support animal’s primary role is to provide emotional support to the owner or the individual. It doesn’t necessarily help the individual perform a certain function like a more highly trained service animal would.
Cynthia Gentile: So it sounds to me like there’s definitely confusion between those two terms, especially as it relates to employment law. I know when I think of a service animal or emotional support animal, my first image is of a guide dog for a vision impaired individual. But the ADA definition of a service animal goes beyond that, correct?
Neil Goldsmith: Yes, it does. And I think guide dog or seeing-eye dog is what most of us think of when I think of a service animal, but that can be an animal that provides signals for deaf or hearing-impaired individuals. It could detect or respond to potential seizures, anxiety attacks, can aid in mobility. It can pull wheelchairs. There’s really a number of different functions that a true service animal can help with.
Cynthia Gentile: Is there a list of disabilities that an employee could seek an accommodation for a support animal under the ADA?
Neil Goldsmith: Well, not really. And I think if you take one thing away from this podcast and service animals and emotional support animals in the workplace, it’s that you really just need to treat a request for either type of animal in the same way as you would any other request for reasonable accommodation under the ADA. And that’s because Title I, which governs employment does not mention service animals. It does not mention emotional support animals. There’s a few cases out there. I know we’ll touch on one of them in the podcast, but there’s not a whole lot of law, regulations, authority that you could point to on this topic. And the authority that we do have largely tells us we need to follow what the ADA requires in these situations.
Cynthia Gentile: So that’s interesting. We have some vagaries in the ADA, but we’re told to follow what the ADA requires. So, preliminarily, what does the ADA require of the handler or the animal in order to meet the definition of a service animal?
Neil Goldsmith: So it depends on what the disability is and what is the accommodation that’s being requested, right? Because if we’re just doing basic Reasonable Accommodation Law 101, first, the employee has to show that they have a disability that prevents them from performing one or more essential job functions. And then they have to show that the requested accommodation in this case would be to bring an animal to work, would allow them to perform the essential function that they were otherwise unable to perform.
So, for example, we see this a lot for emotional support dogs in the workplace. Typically, it comes up where someone has anxiety, or PTSD, or some sort of mental-health condition, and maybe they’re prone to episodic attacks or things that can debilitate them while they’re working. So they’ll come to the employer and say, I have frequent panic attacks. But if my dog is with me at work, that helps me to not have these panic attacks and therefore allows me to continue to be able to work. That’s usually the type of setting where we see these requests.
Cynthia Gentile: So there’s no differentiation made between a mental health condition and a physical health condition in terms of the request for the accommodation.
There isn’t. The employee still of course, has to show that their condition constitutes a disability. Disabilities generally defined as a condition that substantially limits one or more major life activities. And that can be physical or mental. And, of course, the employer does have the right and often does, to ask for clarifying information and documentation from a medical provider.
Cynthia Gentile: What can they ask of the employee in regards to handling the animal in terms of control over the animal or placement of the animal in the work environment?
Neil Goldsmith: Yeah. So that’s a great question. And this is where the undue hardship prong of the reasonable accommodation analysis really comes in handy for employers. If allowing the accommodation, in other words, allowing the dog to come to work, creates an undue hardship on the business, then the employer does not have to grant it. And there’s always a big question of, well, what is an undue hardship? It’s a big question of what’s an undue hardship. What is a reasonable accommodation? Those are really, really fact-specific, case-by-case type analyses.
But in this context, the employer can certainly require that the animal be properly contained, the animal be properly trained. If there’s other employees that have allergies to the animal, for example, or are otherwise have sensitivities to the animal, if the animal is causing a disruption in the office, they’re running around, they’re barking, they’re messing up papers, other people’s desks, right? I mean, those are all things that can cause an undue hardship.
So there is a responsibility on the pet owner and the individual seeking the accommodation to make sure, that for lack of a better way of saying it, that their animal, their dog can behave in the workplace appropriately.
Cynthia Gentile: Thanks for sharing these important perspectives, Neil. That brings us perfectly to the fairly recent and important case concerning service animals, Maubach v. City of Fairfax, which was decided by a federal court in the Eastern district of Virginia in 2018.
In that case, the plaintiff was a 911 dispatcher. She requested that her emotional support be allowed to accompany her on her shifts on the advice of her mental health care provider. But some of the plaintiff’s coworkers had allergic reactions to the dog. And the plaintiff was offered some accommodations, including a shift change that would, I believe keep her and her service animal away from the employees with the allergies. But ultimately, the court decided that the ADA holds an employee’s owed a reasonable accommodation, but not necessarily the exact accommodation they request. Is that generally correct?
Neil Goldsmith: That is correct. And the case actually does a really nice job in a later footnote kind of describing the general state of the law on service animals and emotional support animals under the ADA and basically just describes what I’ve explained earlier about the distinction.
And here, I think the real problem for the employee was that when the employer came to the employee and said, the dog is causing a disruption because we have these other employees that you work closely with that have allergies, they’re highly allergic to it. There was one issue, I believe, where she was not at her post as a 911 dispatcher, because she had to walk the dog or help the dog go relieve itself, leaving the post, not properly staffed, which obviously is a problem if you’re a 911 dispatcher. And so there were some issues, there was some hardships, certainly from the employer’s perspective.
And they went back to the employee and they gave a couple different, or they suggested a couple of different accommodations. One of which I know was, well, you can get a hypoallergenic dog and you can bring that dog instead. And the employee basically said, “Sorry, nope, you don’t get to tell me what to do. I have a right to bring this animal in. And that’s that.” She really didn’t engage in the interactive process in the way that I think the court envisioned that she was required to under the ADA. And I think that’s really what was fatal to her claim here.
Cynthia Gentile: This is a really interesting case. So what questions can an employer ask when an employee does request this accommodation? And are there any things that the employer cannot ask?
Neil Goldsmith: Well, what I have seen somewhat recently is sometimes an employee will come to the employer with what they’re calling a certification or a certificate showing, “Hey, this is a certified service animal under the ADA. And therefore you have to allow it in the workplace.” And employers beware, there is no such thing as a certified service animal that’s okay for the workplace, right? There is no stamp that the government puts on these animals that make it okay automatically to allow them into the workplace. I’ve seen that a lot.
So, just know if you get that sort of paperwork presented to you by an employee that is certainly not the be all end all. You still want to ask the right questions and engage in the analysis. So, in terms of what you can ask really focus on, okay, what is the impairment that the employee has? What’s the thing that they can’t perform that they need to?
And, more importantly, how does the animal allow them to perform that function? The example that I used earlier about someone saying, “Well, I’m subject to panic attacks and having the dog helps me so I don’t have panic attacks.”
Well, one, I would make sure that you get that claim verified by a medical professional. Two, I think it depends on, okay, well, what is the frequency and severity of these panic attacks? If they’re very infrequent or they’re not very severe and they only require the employee to be maybe away from their desk for a few minutes, that might not be a significant enough disruption to warrant bringing a dog into the workplace.
To be clear I think what a lot of employees, not a lot, but what some employees are trying to do is okay, how can I find a way that I can bring my dog to work? Because as you alluded to at the beginning, wouldn’t it be nice and awesome to have your dog at work with you? Certainly, right? I mean, who wouldn’t like that?
So, it’s a question of, okay, well, how can we weed out the folks who are just looking for a way to get their dog to come to work with them so they enjoy it more versus the folks who actually do have a legitimate need to have the dog there and the dog really does serve significant purpose and doesn’t create a disruption. So you can certainly ask for documentation as I mentioned. Certainly ask the employee about, okay, well, what does the dog do for you? How does the dog allow you to perform these functions that you can’t perform?
And then really is the undue hardship piece, I think is going to be the more important part of the analysis. Because that’s something that as the employer, you’re certainly more in control of, you know what your workplace requires, what the workplace set up should look like, what your other employee’s needs are, what your operational needs are. And, yes, even if having that dog may help that employee, if it’s disrupting several other employees, you don’t have to have it in the workplace, right?
You don’t need to give up the ease of the working environment for other employees just to help one employee that may need this accommodation. So, it’s really kind of a balancing test in terms of, okay, well, does the employee really need this? And if they do, what kind of hardship does it pose on the employer?
Cynthia Gentile: Right. So if I’m understanding correctly, it sounds a lot like every other test that we go through for an acceptable accommodation, as far as balancing out the employer needs and the hardship to the employer and the work environment.
I have a question though, around perhaps where other laws come into play. So, are there examples of jobs where a service animal would be deemed a risk and therefore the employee would be justifiably disallowed from bringing the animal to work? Or the employee would not be hired in the first place? So I’m thinking maybe like a chef, for example. Could a restaurant disallow a service dog in the kitchen ostensibly due to health code concerns?
Neil Goldsmith: Yes. Anytime you’re dealing with food safety, I think it’s going to be a really hard sell for the employee to show that it’s not an undue hardship to have that animal in the workplace. So I know on a previous episode, we talked about the gig economy world.
And one of the clients I work with in that space is a food delivery company. And I see requests to have dogs ride with the food delivery drivers all the time. It’s a very common request. Occasionally we’ll allow those requests. We make sure the food is separated from the dog, right? The food is in the trunk, the dogs in the main part of the vehicle, the dog does not come with the delivery driver up to deliver the food, that sort of thing. So it’s an interesting question. Although at the same time, right, let’s say your DoorDash driver pulls up and you see a dog in their car, and then they see you give the food. Some customers might not feel too great about that either.
So it’s an interesting question in that space. As far as your question on, well, what other laws might come into play here? OSHA is a big one. If obviously, if having the dog at the workplace creates a safety hazard, that’s certainly a reason to deny having the dog in the workplace, even if it does constitute a reasonable accommodation.
Similarly, there have been some cases out there too, where if you allow the dog in the workplace and another employee has an allergy, and then they all of a sudden they say, well, I can’t work because there’s a dog in the workplace and I need a leave under the ADA because I have a disability which creates these allergies and now I can’t work. So you might actually have kind of a reverse problem of creating, you’re solving the problem for one employee, but you might be creating some ADA liability for another employee.
And on that note too, you need to be worried about what I call the copycat request problem, where you let one employee bring their dog in as an accommodation. All of a sudden, you have 10 other requests from other employees to bring dogs in as an accommodation. All of a sudden, you’re running a dog boarding operation and that’s clearly not what you’re intended to do. Or maybe the dogs keep barking at each other and they don’t like each other, right? These are all the things that are certainly huge distractions in the workplace that are, for the most part, legitimate reasons to deny these types of requests.
Cynthia Gentile: So at the beginning of our conversation, you and I both our pandemic puppies. And I also have, I’d be remiss if I did not mention my cats. Is there any evidence in an uptick in requests for accommodations, as employees are called back to the office in our post-COVID world?
Neil Goldsmith: I can’t say that I’ve seen any hard data on this, but it would not surprise me in the least if that were the case. I think there’s been an increased focus on mental health over the last several years, even before the pandemic. I think the pandemic has only further highlighted the importance and the need for employees to be in tune with their mental health and their employers to recognize mental health needs as well. So I think that coupled with the fact that, yes, so many people did get pandemic puppies. I’d be very surprised if we did not see a significant uptick in these sorts of requests in the near future.
Cynthia Gentile: So that will make for part two of our podcast in a few months, I suspect.
Neil Goldsmith: Yes. And hopefully some more case laws. So we can get a little bit more clarity on this topic too.
Cynthia Gentile: That is true. My research left me with more questions than answers. So maybe with more opportunity for conflict, we get more clarification and lawyers love that, right?
Neil Goldsmith: Yes, exactly. We like clarification, but I also like a fair amount of gray and I like to say it does keep me employed. I’ll take that as well.
Cynthia Gentile: This is true. Well, thank you, Neil, as always for taking time to talk with me today and sharing your experiences and your perspectives. I really enjoyed our conversation. And until next time.
Neil Goldsmith: Yes. Thanks for having me again and look forward to our next chat.
Cynthia Gentile: Thank you to our listeners as well for joining us. Be well and be safe.
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