Emotional Support Animals as Workplace Accommodations

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As private employers push for remote workers to return to the office, they have faced an increasingly common dilemma—are emotional support animals permitted in the workplace as a reasonable accommodation for a disability?

The Americans with Disabilities Act (“ADA”) provides little clarity on the subject. While the ADA defines a service animal within the context of public places and government services and programs under Titles II and III, Title I of the Act—which applies to employment—does not provide a definition. Therefore, private employers are left with no applicable ADA regulations nor written guidance from the Equal Employment Opportunity Commission when faced with this pressing question.

Due to this lack of direction, employers should consider treating the request for an emotional support animal (“ESA”) in the office under the ADA like any other accommodation request. As a reminder, the ADA requires covered employers to reasonably accommodate[1] qualified individuals with a disability if they can do so without causing an undue hardship on the business.[2] Employers must engage in the “interactive process” with the requesting employee. This is an informal practice in which the employer and employee work together to determine the specific limitations created by the disability and how best to respond to the need for accommodation.

The request for an ESA is likely asking an employer to modify the workplace’s no-pets policy. First, the employer should determine if this modification is possible – for example, a desk job versus a sterile laboratory position would pose different risks.

Next, while optional, the ADA permits employers to ask for medical documentation of a disability from the requesting employee if the disability and need for an accommodation is not obvious or previously verified. This certification provides clarity to the employer on the functional limitations of the employee, thus allowing the employer to engage more effectively to determine the type of accommodation needed. The ADA only requires employers to make accommodations that are needed because of a disability.

Once the need is established, the employer may speak with the employee about facts specific to the ESA to determine if its presence in the workplace will pose an undue hardship. This is a fact-based analysis—therefore, questions to the employee could include the type of training the animal has received, tasks and services the animal is trained to perform, and if the animal will behave appropriately in the workplace.

Employers should be wary in this step—undue hardship does not include speculation of potential problems in the workplace. For example, if an employer intends to deny the ESA due to an undue hardship, it should have sufficient documentation showing why it is unable to accommodate the animal in the office. Speculation of coworker allergies and/or phobias may not be enough to deny the request – employers should take steps to identify and resolve issues that may arise rather than automatically denying the ESA without inquiring into solutions.

With that said, remember that employers are not required to allow an animal into the workplace that poses a legitimate direct threat, that cannot behave appropriately in the work environment, or is disruptive to other coworkers or the business. Conducting an in-person interview with both the requesting employee and their ESA as a part of the interactive process may be a practical way to ask appropriate questions regarding training, as well as to get an idea of how the ESA will behave in the workplace.

Lastly, even if an employer is hesitant, allowing the animal into the workplace for a trial period would show good-faith efforts to accommodate the requesting employee. To implement this, there should be a written understanding with the employee detailing the length of the trial period and the factors that the employer will consider in either making a decision or ending the trial period early.

While this issue has received increased attention lately due to post-pandemic pushback to return to office policies, the lack of authoritative guidance encourages a more cautious approach for employers to take. This article only addresses accommodations under Title I of the ADA—employers should be aware of other federal, state, or local law that may require broader obligations to accommodate a disabled employee.

If you would like additional guidance on this subject or any related issues, please contact the Nexsen Pruet labor and employment law group.

_{[1]  A reasonable accommodation is a change in the work environment, or in the way things in the workplace are customarily done, that enables an individual with a disability to enjoy equal employment opportunities. (29 C.F.R. § 1630.2(o)).
[2]  An undue hardship is a significant difficulty or expense on the business, which includes various considerations such as nature and cost, financial resources available, the type of business operations, the impact of the accommodation on the operation of the facility (including the impact on the ability to conduct business and other employees to perform their duties), as well as other factors. (29 C.F.R. § 1630.2(p)).}