Employees with qualifying disabilities may rely on a service and/or emotional support animal for a variety of reasons, and allowing them to do so at work may be considered a “reasonable accommodation” under the Americans with Disabilities Act (ADA), provided the task performed by the animal is needed in the workplace, it’s directly related to the employee’s specified disability, and the accommodation doesn’t cause the employer an undue hardship.
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When it comes to letting dangerous and/or potentially disruptive animals enter the workplace, an employer’s duty to maintain a safe and comfortable work environment may supersede the employee’s need, thereby rendering the requested accommodation unreasonable and therefore deniable.
All of this sounds very friendly and useful. But how does the balancing act play out if the service animal is a boa constrictor?! Read on to learn the pulsating details.
Cleanup on Aisle 4
While walking through my local supermarket’s produce section recently, I noticed a disheveled young woman talking to herself. In addition, a three-foot-long snake was coiled around her neck. When a fellow shopper suggested that bringing what appeared to be a fairly young but fearful-looking boa constrictor into a public shopping center could be dangerous, the woman shouted back: “It’s my emotional support animal, broccoli-head, suck it up.” Then she said, “If you harass me, I will call my manager, who will throw you out.” And it dawned on me, she was in fact a market employee.
When you fly or check into a hotel, you may have noticed that more and more people are being accompanied by service and/or emotional support animals and that their use is becoming widely accepted. That’s because in many cases, the law requires both public places of accommodation and employers to make necessary changes in their policies and facilities to permit the use of service and/or emotional support animals.
Before we sort through whether a boa constrictor can be a valid service animal, here is some background information on the ADA that will be helpful to our analysis.
Title III of ADA: Public Accommodation
Title III requires public places of accommodation to modify policies, practices, or procedures to permit the use of a “service animal” by an individual with a disability. Under Title III, a service animal is defined 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.
This statute also requires places of public accommodation to make the same reasonable modifications to permit the use of a miniature horse by an individual with a disability—if the horse has been trained to do work or perform tasks for the person’s benefit.
Note that other species of animals (including boa constrictors), whether wild or domestic, trained or untrained, are not considered “service animals” under Title III.
There are, of course, some limitations. For example, the work or tasks performed by the service animal must be directly related to the individual’s disability. Examples include (but aren’t limited to):
- Assisting individuals who are blind or have low vision with navigation and other tasks;
- Alerting individuals who are deaf or hard of hearing to the presence of people or sounds;
- Providing nonviolent protection or rescue work;
- Pulling a wheelchair;
- Assisting an individual during a seizure;
- Alerting individuals to the presence of allergens;
- Retrieving items such as medicine or the telephone;
- Providing physical support and assistance with balance and stability to individuals with mobility disabilities; and
- Helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.
However, the crime-deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not qualify as work or tasks for the purpose of this definition. Accordingly, emotional support animals, comfort animals, and therapy dogs aren’t service animals under Title III.
So it’s clear that even if my neighborhood snake handler had a qualifying disability, Title III of the ADA wouldn’t require the supermarket to grant her and her boa constrictor access. The snake doesn’t qualify as a “service animal,” and there is no corresponding federal law requiring the public accommodation of emotional support/therapy animals (animals that provide people with therapeutic contact, usually in a clinical setting, to improve their physical, social, emotional, and/or cognitive functioning).
While some states have laws defining “therapy animals,” these animals aren’t limited to working with people with disabilities and therefore aren’t covered by federal laws protecting their use.
Title I of ADA: Employment
Title I of the ADA, the section covering employment, contains a very different standard. It doesn’t require employers to automatically allow employees to bring their service and/or other animals to work, but allowing an animal into the workplace can be a form of reasonable accommodation under Title I.
Title I applies to employers with 15 or more workers and prohibits employment discrimination against any employee because of a disability, as long as the individual is qualified (meaning “able”) to do her job. A disability entitling an employee to ADA protection is defined as a physical or mental problem that makes it very difficult for the individual to perform at least one “major life activity,” such as breathing, walking, communicating, seeing, or hearing.
Passage of the ADA Amendments Act of 2008 greatly expanded the definition of “disability,” making it easier for a person to qualify as disabled and providing a lengthy—but not exhaustive—list of what are considered to be “major life activities.”
They include performing manual tasks, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and “the operation of a major bodily function,” which would include functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
In addition to prohibiting disability discrimination, the ADA requires employers to provide “reasonable accommodations” (meaning a change in the way things are usually done) to help disabled persons do their job. According to the Equal Employment Opportunity Commission (EEOC), while Title I doesn’t require employers to automatically let employees bring their service animals to work, allowing a service animal into the workplace is a form of reasonable accommodation.
Title I, however, doesn’t contain a specific definition of “service animal,” and Title III regulations don’t apply to questions arising under Title I. For employers, this means that under the ADA, you may have to consider allowing employees with qualifying disabilities to bring therapy/emotional support animals into the workplace as a reasonable accommodation for a specific disability.
Nevada’s Equal Opportunities for Employment Act is actually a little stronger. Under that law, it’s unlawful for an employer, either directly or indirectly, to refuse to let an employee with a disability keep his service animal with him at all times in his place of employment. One exception: An employer may refuse to permit an employee to keep a miniature horse service animal with him if it determines it isn’t reasonable to comply by ADA Title III standards.
Under Nevada law, “service animal” has the same meaning that’s ascribed to it under Title III, and state law further states that no person other than a disabled person (as defined under the ADA) with a valid state “expedited service permit” is lawfully allowed to use a service animal. State law, however, is silent on an employer’s acceptance of therapy/emotional support animals in the workplace, leaving Nevada employers to comply with the ADA when it comes to nonservice animals.
Snake as Emotional Support Animal?
Accordingly, under Nevada law, except in a few circumstances, a disabled person may not be denied the right to bring his “service animal” (meeting the Title III definition noted above: dogs and miniature horses) into the workplace. With regard to other animals, e.g., emotional support/therapy animals, they are required to be permitted in Nevada workplaces only as a reasonable accommodation for a disabled employee under Title I of the ADA.
As noted, however, there are no legal definitions for “emotional support/therapy animals” under federal or Nevada state law. Despite the fact that the EEOC doesn’t have a specific regulation for emotional support animals, interpretive guidance has been issued indicating that they can be a reasonable accommodation under Title I, provided:
- The employee has a qualifying disability and is otherwise qualified to do the job;
- The animal is needed to assist with performance of the employee’s required duties, and there is a direct connection to the employee’s disability; and
- Granting the accommodation doesn’t create an undue hardship for the employer.
The ADA doesn’t require employers to let employees bring an animal into the workplace if it isn’t needed because of a disability or creates an undue hardship, e.g., by disrupting the workplace, as a snake undoubtedly would.
Bye-Bye, Boa
Because a snake isn’t a “service animal” as defined under Title III of the ADA, my neighborhood supermarket wouldn’t be legally required to permit it on the premises. For the same reason, Nevada state law wouldn’t require the employer to allow the snake in the workplace. The remaining question is whether the employee would be permitted to bring the snake to work as a reasonable accommodation under Title I of the ADA.
If the employee was otherwise qualified for her job and had a qualifying disability requiring a reasonable accommodation, her physician would have to:
- Identify the job-related need created by the snake owner’s disability;
- Recommend that she be permitted to bring a therapeutic emotional support animal to work; and
- Justify why it has to be a snake.
Employers have the right to verify the need for an emotional support animal. To prove that an animal is an emotional support animal, the employee may be asked to provide documentation from a licensed professional (doctor, psychiatrist, or other mental health pro) stating that the animal is an essential part of the treatment for a disability.
Even then, the ADA allows employers to choose effective accommodations, which kicks off the “accommodation dance.” The goal should be to determine whether a less intrusive and intimidating accommodation exists that would equally meet the employee’s needs. This is a perfectly acceptable exercise for emotional support animals, although providing a substitute accommodation for a bona fide “service animal” isn’t permitted under Nevada law and isn’t otherwise recommended.
Finally, both service and emotional support animals may be excluded from the workplace if they pose a direct threat in the workplace, are dangerous, or cause another form of undue hardship, e.g., other employees refuse to come to work if the snake is permitted to stay.
When it comes to permitting dangerous and/or potentially disruptive animals at a worksite, the employer’s interest in maintaining a safe and comfortable work environment may supersede the ADA. Regarding the snake, the employer would undoubtedly be justified in deeming the requested accommodation unreasonable and denying the employee’s request.
Why my supermarket has chosen to permit the snake is a mystery. Either it voluntarily chose to have a policy that permits the animal or it hasn’t done the legal analysis required to justify denying the requested accommodation.
Bottom Line
Only people with disabilities may use service or emotional support animals in the workplace under any given scenario. If the disability isn’t obvious and/or the reason the animal is needed isn’t clear, you may request documentation to establish that the disability exists, an accommodation is needed, and the animal could help the individual perform the job.
You also have the right to require that any animal brought into the workplace be fully trained and capable of functioning appropriately, not just for the employee with the disability but also in terms of behavior and other considerations consistent with your setting.
If the service/support animal must be permitted as a reasonable accommodation, you may reasonably require that the animal be clean and well-trained. The employee is responsible for the service animal’s care, but you may have to provide accommodations that enable him to do so. Accordingly, you should consult with the employee to find out what accommodations are needed to care for the animal. For example, an employee might need to adjust his break times to take his service animal outside.
Bottom line: No accommodation is required unless the employee is certified disabled as defined by the ADA and is qualified to perform the essential job functions. Even for qualified employees with a disability, however, you don’t have to allow them to bring an animal to work if it isn’t needed because of and directly related to a disability or it disrupts the workplace.
If you go through the interactive process and the employee’s physician recommends an emotional support animal to calm anxiety or as some form of social therapy, it’s highly unlikely that the doctor would recommend a snake as an emotional support animal.
Regardless of whatever animal is recommended, however, you must conduct an analysis to determine whether the employee should be allowed to bring the animal into the workplace. To that end, you must determine:
- Whether the proposed animal directly relates to the employee’s disability;
- What the animal does for the employee;
- Whether an authorized person (e.g., a physician or an animal trainer) has certified that the animal is trained to perform the work-related tasks and wouldn’t disrupt the workplace; and
- Whether the employee has any necessary animal permits required by state law.
Deanna Forbush, editor of Nevada Employment Law Letter, can be reached at dforbush@clarkhill.com.
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