By’ Bill Pilchak – 2/26/15
We all know that animals are often trained to assist humans with disabilities. Leader Dogs for the Blind is headquartered in Rochester, Michigan and their service animals provide invaluable assistance to the blind. We have heard of animals that alert the deaf to noises, predict seizures, pull wheelchairs and retrieve items for those with mobility items. Allowing a disabled person to bring a legitimate service animal to work is clearly a required accommodation under the ADA.
However, like most of the benevolent laws we deal with, some seek to exploit the concept. The latest trend is for individuals to claim that their pets provide emotional support. So far, most of the case law has involved individuals attempting to avoid “no pet” rules in housing complexes and homeowner associations. An Iowa state court held that a plaintiff was entitled to a trial to determine if her two Dobermans were a reasonable accommodation of her post-traumatic stress disorder caused by a prior break-in. However, a federal case held that a bulldog was not an individually trained service dog so as to be an accommodation of depression and anxiety.
New Yorker Magazine, not often friendly to the business perspective, noted the problems businesses face and documented how easy it is to get a psychologist to certify the need for a support animal. http://www.newyorker.com/magazine/2014/10/20/pets-allowed . The author noted that anyone could register their animal (or actually a beanie baby) as a support animal for a fee between $70 and $250. The author registered a thirteen-pound turtle with the Emotional Support Animal Registration of America, who evaluated her over the phone and provided her with a letter certifying her need for the turtle. She also succeeded in registering a snake, a turkey, an alpaca (who she tried to take on a train) and a pig (who she did take on a plane in a stroller) as emotional support animals.
The New Yorker author found that those who push the envelope are armed by federal publications that warn that the only two questions that may be asked is: 1) Is the animal required because of a disability? 2) what work or task has the animal been trained to perform? Such publications exist, however, other publications suggest other strategies.
Readers might be interested in knowing that the government has (once again) largely avoided the mess that service animals may cause (pun intended). Title II of the ADA applies to state and local government services. Title III applies to public accommodations and commercial facilities. In those realms, a July 12, 2010 bulletin published by the Department of Justice, Disability Rights Section (http://www.ada.gov/service_animals_2010.htm ), while indicating the above two questions are the only permissible questions, also states:
- Only dogs are recognized as service animals under Titles II and III of the ADA;
- A Service animal is a dog that is individually trained to do work or perform tasks…which must be directly related to the person’s disability;
- Service animals are working animals not pets;
- Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.
- [Despite the above provisions, a following provision states:]
- In addition to the provisions about service dogs…miniature horses that have been individually trained to do work and perform tasks [may qualify as service animals].
- Assessment factors included whether the horse is housebroken, under the owners control, etc.
Businesses faced with this issue with regard to customers and visitors are cautioned to assure themselves that the 2011 bulletin remains in effect. Otherwise the joke may be on them.
The New Yorker article ends up being humorous, but employers aren’t laughing. They have been jerked around before by employees who seek to control them. Fortunately, employers are armed a bit more with respect to employees than businesses open to and required to accommodate the public. Employers are not required to accommodate an unknown disability and may make reasonable inquiries (if consistent with business necessity) to determine if the person has a covered disability and to identify a reasonable accommodation. Such inquiries should be made with care, however, to avoid a violation of the ADA. Additionally, an employer might conduct a medical examination, if consistent with business necessity. Such an examination might smoke out that no treating medical professional has prescribed the need for the animal. Finally, employers are obligated to provide reasonable accommodations and not the accommodation of the employee’s choice. Thus, as long as there is some other form of reasonable and effective accommodation, employers are within their right to reject a request to bring an employee’s pet iguana to work as an accommodation.