Service and emotional support animals are commonly seen in many public places, ranging from stores to restaurants to airports. They are becoming more prevalent in the work place as well. Recently, the U.S. Equal Employment Opportunity Commission filed suit in the U.S. District Court for the Middle District of Florida against trucking company CRST Expedited Inc. on behalf of a truck driver trainee who is a veteran with Post Traumatic Stress Disorder. The EEOC alleges that the employer violated the Americans with Disabilities Act (ADA) by refusing to hire the veteran—despite successful completion of the initial training program—because he uses an emotional support dog to manage his PTSD. The Commission also claims the employer failed to discuss other possible job accommodations, and retaliated against the trainee for requesting help with his disability by denying advancement to the new driver orientation and further on-the-road training due to the company’s “no pet policy.” The trainee was subsequently denied hire.
Issues regarding the usage of service animals at work are becoming more common. The EEOC has provided guidance with ADA compliance that discusses the use of service animals as a reasonable accommodation for restaurant and food service employers (https://www.eeoc.gov/facts/restaurant_guide.html). The guide cites FDA Food Code Section 2-403.11, which generally prohibits handling of animals but allows employees to use service animals where food is not being prepared. For example, if the requesting employee works at the cash register as opposed to the kitchen, an employer ought not automatically reject the request for a service animal.
Additionally, at the end of 2016 the Commission issued a resource document entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights”, to draw more attention to accommodating mental health issues in the workplace. In announcing the publication, the agency states that per the 2016 preliminary data, it “resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations.”
Employers should generally handle an employee’s request to use a service animal for assistance with a disability as it would any other accommodation request under the ADA. In other words, the employer should assess the request in the workplace setting, the requesting employee’s disability and job responsibilities, possible alternative reasonable accommodations, as well as other factors. If doing so would create an “undue hardship,” employers do not have to permit an applicant or employee with a disability to use a service animal at work. Title I of the ADA defines “undue hardship” as “an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).” 42 U.S.C. § 12111(10)(A). Subparagraph (B), in turn, provides a non-exhaustive list of relevant factors:
- the nature and cost of the accommodation needed under this chapter;
- (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
- (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
- (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. Id. § 12111(10)(B).
In conclusion, while it may be appropriate in some workplaces to permit use of a service animal to accommodate an employee’s mental health condition or disability, in others it may not be.
If you believe you have been the victim of discrimination in the workplace because of a disability or perceived disability, please call us to schedule a consultation at 703-865-7480.