Employers, How Are You Handling Ruff Requests?

As COVID-19 vaccines become more readily available to more people and states ease gathering restrictions, employees are steadily, if slowly, returning to the office. As life returns to a semblance of normal, I wonder if employers will see an increase in requests from employees to bring their emotional support animals (“ESAs”) to work. Indeed, mental health conditions continue to soar across the country, with many employees cooped up at home with only their pets for company.

Where do ESAs fit in when considering mental health conditions?

What are ESAs? ESAs are not service dogs, and ESA owners are not entitled to the same legal protections. ESAs provide their owners with support through companionship and can help ease anxiety, depression, and certain phobias. (See here.)

Amy, I Love My Dog, But…?

Before dismissing out of hand an employee’s request to bring an ESA to work, remember that the Americans with Disabilities Act (ADA) requires an employer to engage in an interactive process to discuss with an employee with a disability (as defined by the ADA) what reasonable accommodations might be available to help an employee with a physical or mental health impairment perform the essential functions of the employee’s job.

The accommodation(s) must be reasonable and effective and address the employee’s functional limitations. As I wrote here, a reasonable accommodation is simply a change in the way duties are performed to help a disabled employee perform his or her job duties or enjoy the benefits and privileges of employment.

BUT, an accommodation is not reasonable if it imposes an undue burden or hardship on the employer.

While an ESA is not a service animal, allowing an employee to bring that pup to work may be a reasonable accommodation—depending on the workplace.

HR, What Do you Do If An Employee Requests To Bring An ESA To Work?

Take it seriously, at least. Can you request information from the employee’s health care provider? I think so.

As with any mental health condition or “invisible disability,” you can and should request information about the employee’s condition and the functional limitations imposed by the condition. Think of it like a “prescription” for an ESA for anxiety, depression, ADHD, PTSD, etc.

This letter should:

  • Be written by the mental health professional of the employee;
  • Indicate the disability for which the animal is needed;
  • Provide details of how the employee’s life or activities may be limited by the disorder; and
  • Explain how the ESA will help the employee do the job.

Sounds like the interactive process, does it not?

Marty (photo by Daryn Gluck)

In other words, treat the request for an ESA as you would any request for a reasonable accommodation.

Won’t an ESA At Work Impose An Hardship?

That’s part of the interactive process. Like with any other request for a reasonable accommodation, consider the employee’s job and the work environment when determining whether this is a reasonable request. Request the animal’s history, including vaccinations. Has the ESA ever bitten anyone? What other health or safety issues may be involved? Won’t an ESA at work be disruptive?

These questions all present considerations when you engage in the interactive process.

Employers might consider allowing an ESA on a temporary or trial basis—to determine if the accommodation will be effective without being disruptive to others. A “temporary accommodation agreement” may be a good idea—if you want your employee to sign such an agreement, check with your employment lawyer. Don’t download this type of agreement off the internet!

So, To Recap

When considering an employee’s request to bring a dog, cat, emotional support hamster, turtle, or fish to work:

  • Determine whether or not an employee requires an accommodation. Actually talk to the employee about this. We call this “engaging in an interactive discussion.”
  • Obtain from your employee or his or her doctor an understanding of how the disability affects the employee’s ability to do the job.
  • See if you can provide the accommodation without undue burden on your operations or other workers. Consider a trial period of allowing your employee to bring the ESA to work.
  • Document substantially a determination not to provide an accommodation because of an undue burden.

One action I do not recommend: denying the request out of hand. An emotional support animal may be the only reasonable accommodation available because of the specific, personal bond between employee and ESA.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.