Employee Requests for Service Animals at Work Put Employers in a Hairy Predicament

December 7, 2018

You’ve likely heard the stories about people claiming they need to bring service animals, including squirrels or ducks, onto planes or keep “therapy snakes” in their apartments. While service animals provide undeniable benefits to their disabled owners, some of the outlandish requests to keep an exotic service animal close by, especially when the person making the request has no immediately apparent disability, raise questions about whether there’s a valid need for the animal. Specifically, many landlords, business owners, and employers are wondering to what extent they need to grant requests by tenants and employees to keep service animals in their leased premises or bring them to the workplace. The issue is further muddled when someone who claims to need a service animal exhibits no apparent physical disability but claims to suffer from an emotional impairment (e.g., a form of depression or anxiety).

To answer these questions for employers, we must look to both federal and state law. The federal Americans with Disabilities Act (ADA) provides guidance on accommodating individuals’ disabilities in an employment setting. And although Wisconsin law doesn’t directly address service animals in the workplace, the Wisconsin Legislature recently enacted 2017 Wis. Act 317, which, in part, addresses tenants’ rights to keep service and emotional support animals in their leased premises. The rules and principles espoused in the new law may be helpful to employers determining whether to grant employees’ requests to bring their service animals to the workplace.

What the ADA Requires

Under the ADA, an individual is generally deemed to have a disability if he suffers from a “physical or mental impairment that substantially limits one or more major life activities.” The ADA further clarifies that “working” constitutes a major life activity for the purpose of determining the existence of a disability. Notably, the definition of “disability” is to be construed broadly and includes disabilities that are episodic in nature or are in remission.

Title I of the ADA contains guidelines for employers dealing with employees’ disabilities in a work setting. That chapter of the ADA is applicable to “employers” that employ 15 or more individuals for each workday in 20 or more workweeks of a given year. Exceptions include the U.S. government, corporations wholly owned by the U.S. government, and bona fide 501(c) nonprofit entities. The rules promulgated under Title I of the ADA state that employers must provide reasonable accommodations to disabled employees as long as the accommodations don’t create an undue hardship on their business operations. However, a disabled employee must otherwise be capable of performing the essential functions inherent in his job.

Certain factors should be assessed to determine whether providing the reasonable accommodation would create an undue hardship, including:

  1. The nature and cost of the accommodation;
  2. The employer’s financial ability and resources to provide the accommodation;
  3. The location of and the number of people employed at the facility where the accommodation would be provided; and
  4. The type of business operations of the employer being asked to provide the accommodation.

It’s also notable that employers are generally prohibited from making preemployment inquiries to determine if job applicants are disabled or the nature or severity of any disabilities they may have. However, you are entitled to make preemployment inquiries into an applicant’s ability to perform job-related functions, with or without a reasonable accommodation.

While Title I of the ADA doesn’t directly address service animals in the workplace, the Equal Employment Opportunity Commission (EEOC) has indicated that a reasonable accommodation would include allowing a disabled employee to bring a service animal into the workplace. Title II, which addresses discrimination by proprietors of public places against individuals with disabilities, generally provides that individuals with disabilities must be allowed to bring their service animals into public places.

Title II of the ADA defines a service animal as “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” (emphasis added). Notably, other species of animals are specifically excluded from the definition of service animal.

Wisconsin Service Animal Laws

Although Wisconsin law doesn’t specifically address whether disabled individuals are entitled to bring service animals into the workplace, guidance for employers can be found in the Wisconsin Fair Employment Act (WFEA), codified in Wisconsin Statutes §§ 111.31-111.395, and 2017 Wis. Act 317, enacted in April 2018.

The WFEA precludes employment discrimination against individuals with disabilities under rules similar to those espoused under Title I of the ADA. Specifically, under the WFEA, an employer is deemed to have discriminated against a disabled employee or prospective employee if it fails to provide reasonable accommodations, unless it can demonstrate that the accommodation would cause a hardship on its business.

However, it is not considered discrimination under the WFEA to make an adverse employment decision if an individual’s disability is “reasonably related to [her] ability to adequately undertake the job-related responsibilities of [the] employment.” In other words, if a disability precludes someone from performing the essential functions of the job with or without reasonable accommodation, it wouldn’t be discriminatory to refuse to hire her. Evaluations must be made on a case-by-case basis, and consideration should be paid to “the present and future safety of the individual, of the individual’s coworkers and, if applicable, of the general public.”

In the context of allowing service animals at the workplace, an employer would be able to consider the type of animal and the work environment when making a determination about whether to allow the animal into its facility. An employee keeping his well-behaved Labrador retriever in his individually occupied office likely wouldn’t pose a threat to coworkers and the general public, but an unruly pit bull accompanying a retail worker in a public department store would surely constitute a hardship on the employer’s business. However, the WFEA doesn’t provide copious detail about what constitutes a reasonable accommodation or whether allowing workers to be accompanied by service animals constitutes a reasonable accommodation and, if so, for what types of disabilities.

Most employers probably wouldn’t have a problem with a physically disabled employee bringing a service animal into the workplace under the proper conditions. Service animals are generally dogs belonging to appropriate breeds with subdued temperaments that are highly trained to perform specific tasks for their owners. However, frustrations likely arise when an employee with no apparent disability claims to need a service animal in the workplace and the animal’s training or ability to perform tasks or services that help alleviate or ease the disability is questionable.

The Wisconsin Legislature addressed those frustrations in the context of the landlord-tenant relationship when it passed Act 317. Although the new law isn’t directly applicable to the workplace setting, it provides some guidance on how employers may evaluate employees’ requests for service animals and how Wisconsin courts and lawmakers might decide these issues when the opportunity arises.

Act 317 makes a distinction between emotional support animals and service animals. Service animals are individually trained to perform work or tasks for an individual who has a disability and a disability-related need for the animal. Act 317 makes it discriminatory and illegal for landlords to prohibit service animals in rental properties. A landlord may ask for proof of the tenant’s disability, unless the disability is obvious. The tenant’s failure to provide proof of a disability upon request is sufficient grounds for the landlord to refuse to allow him to keep the animal.

Conversely, an emotional support animal provides emotional support, well-being, comfort, or companionship but isn’t trained to perform tasks for the benefit of a person with a disability. The rules for service animals in rental properties also apply to emotional support animals. However, the tenant may be required to provide documentation from a licensed healthcare professional showing her need for the animal. A misrepresentation by the tenant or a licensed healthcare professional about the need for the animal carries a minimum $500 fine.

What Does this Mean for Wisconsin Employers?

Under the ADA, an employer must permit an employee with a mental or physical impairment to be accompanied by a service animal at its facility. However, that requirement is limited to service dogs that are trained to perform a task that serves the disabled employee. Examples include a dog providing navigational guidance to a blind employee, visual notification to a deaf employee, or therapeutic support to an employee suffering from a severe anxiety disorder.

The ADA does not provide a blanket excuse for an employee to bring Fido into work every day. The dog must be specifically trained to perform a task that aids the disabled employee. It wouldn’t be enough for an employee who suffers from an emotional disorder to claim that his Doberman Pinscher provides general comfort and emotional support when the Doberman hasn’t been trained to perform any specific tasks that alleviate the employee’s suffering. In addition, an employer wouldn’t be obligated to allow an employee to bring a service dog into work if it would be an undue hardship on the employer’s operations. Theoretically, then, a restaurant wouldn’t be in violation of the ADA if it refused to allow a chef to bring her Saint Bernard into its five-star kitchen because the dog’s presence would implicate obvious operational and sanitation concerns.

Similar rules apply in Wisconsin under the WFEA. And although the rules promulgated under Act 317 shouldn’t be directly applied to the analysis of whether service animals are permitted in the workplace, they at least provide insight into how the issue might be handled by Wisconsin lawmakers in the future. That may especially hold true in the context of emotional support animals or when an individual’s disability may not be obvious. However, because the inquiry by a landlord into the existence and extent of an individual’s disability allowed under Act 317 is expressly prohibited by the ADA, you should tread very carefully when questioning whether an employee in fact has a disability.

Finally, you should also be aware that it may be necessary to provide reasonable accommodations for more than one employee at a given facility. For example, if a blind employee requires the services of a guide dog and an employee who would ordinarily work near the blind employee suffers from allergies or a severe fear of dogs, you would have to provide reasonable accommodations for both employees. In that situation, you might be required to find separate places for each employee to perform his job as long as doing so doesn’t produce an undue hardship on your organization.

Bottom Line

The rules for accommodating individuals with disabilities in the workplace are complex, and there’s very little definitive guidance that specifically addresses service animals at work. You would be well-advised to carefully consider employees’ requests for service animals at your facility and analyze whether providing such an accommodation would truly burden your business operations.

For more information about "Employee Requests for Service Animals at Work Put Employers in a Hairy Predicament," contact Conor Leedom at cleedom@axley.com or 262.409.2286.