Rosen Harwood Blog

Things Are Getting Squirrelly

Emotional Support Animals in the Workplace

A lady and her squirrel get on a plane…

While this sounds like the beginning of a joke, the concept of a strange animal making its way onto a plane is becoming less potential joke material and more a reality of air travel. More and more news stories are featuring animals, including a peacock, a hamster, a duck, a pig, and most recently, a squirrel, that a customer attempts to board a plane with as an emotional support animal.[1] However, concerns over whether certain animals must be accommodated are not confined to air transportation. Rather, businesses in general have had to evaluate their policies to determine whether they are required to allow animals to remain in compliance with federal regulations regarding individuals with disabilities.

It is first important to note the distinctions between service animals and emotional support animals. While service animals are either dogs or miniature horses[2] that are “individually trained to do work or perform tasks for an individual with a disability,” emotional support animals or therapy animals may be any animal who serves to comfort its owner, and they are not trained for any disability-related task. [3] Perhaps the most notable distinction is that the Americans with Disabilities Act (ADA) mandates that businesses and other public places must reasonably accommodate individuals that require assistance from a service animal, such as an individual who is blind and her guide dog.[4] However, the ADA does not extend the same mandate to emotional support animals.[5] Considering their lack of training, an emotional support animal is likely more prone to causing disruptions or placing undue burdens on businesses.

Nevertheless, there are two areas where federal law does specifically require the allowance of emotional support animals: air transportation and housing.[6] The Air Carrier Access Act (ACAA) allows individuals to travel with emotional support animals, but airline personnel may request documentation establishing a legitimate medical condition and describing the support the animal provides, for example, through a letter from a mental health professional. Additionally, airline personnel may reject certain emotional support animals because of their size, weight, whether an animal presents a threat to others, or in consideration of restrictions by foreign countries.[7]

Reasonable accommodations for individuals with disabilities under the Fair Housing Act (FHA) also must be provided to individuals with emotional support animals.[8] Since these animals are not considered “pets,” landlords or homeowner associations likely must waive any “no pet” policies or pet fees.[9] As with airlines though, landlord and homeowner associations may request documentation describing the medical condition that requires access to emotional support animals. If an accommodation results in undue financial or administrative hardship on the landlord or homeowner association, they may reject the accommodation as unreasonable.[10]

Currently, there are no other federal regulations with respect to emotional support animals. Until further guidance on the subject is provided, businesses should follow similar procedures to those required under the legislation that does exist. Thus, employers may request documentation of the condition requiring the animal, and they may still determine that the animal presents an undue hardship because of the nature of the business and concerns for health, safety, and the need to minimize disruptions. Though employers may still need to accommodate the condition that prompted use of an emotional support animal, the accommodation need only be reasonable, and such accommodation may be accomplished by methods other than allowing the animal in the workplace. Ultimately, while businesses must accommodate service animals unless entirely unreasonable to do so, regarding emotional support animals, employers should make determinations on a case-by-case basis.

If I can help or if you have any questions, please feel free to give me a call. 

 

[1] Lindsey Bever, A woman brought her ‘emotional support’ squirrel on a plane. Frontier wouldn’t let it fly., The Washington Post (Oct. 10, 2018), https://www.washingtonpost.com/transportation/2018/10/10/woman-brought-her-emotional-support-squirrel-plane-frontier-wouldnt-let-it-fly/?noredirect=on&utm_term=.6004dd01edd6.

[2] U.S. Dep’t of Justice: Civil Rights Div., Service Animals, ADA.gov (July 2011), https://www.ada.gov/service_animals_2010.pdf.

[3] U.S. Dep’t of Justice: Civil Rights Div., Frequently Asked Questions about Service Animals and the ADA, ADA.gov (July 20, 2015), https://www.ada.gov/regs2010/service_animal_qa.pdf.

[4] Id.

[5] Id.

[6] Jackie Brennan, Service Animals and Emotional Support Animals: Where are they allowed and under what conditions?, ADA National Network (2014),  https://adata.org/sites/adata.org/files/files/Service_Animal_Booklet_2014(2).pdf .

[7] Id.

[8] Id.

[9] Id.

[10] Reasonable Accommodations and Modifications, HUD https://www.hud.gov/pro

gram_offices/fair_housing_equal_opp/reasonable_accommodations_and_modifications (last visited Oct. 19, 2018).

David E. Rains

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