Can you have a no pets at work policy? What if an employee has a service dog? What if it is an emotional support dog? As with all things legal (and ADA), it depends, and you should give some thought and engage in an interactive process before saying no.
Consider this scenario: Carmen, your receptionist, has been with you for years and came to work with Fifi, her standard poodle last week. When someone finally tells HR that there is a poodle in the reception area, you take a look for yourself and find a rather large dog standing behind the reception desk.
What exactly are your rights as an employer?
Engage in the Interactive Process
As a threshold issue, do you have a written no animals policy? If you don’t, that doesn’t necessarily mean you have to permit employees to bring animals. If you do, tell Carmen you have a policy prohibiting animals in your workplace. If Carmen apologizes and explains that her dog-sitter called in sick and she will not bring Fifi to work again, problem solved.
If instead Carmen tells you that she has a disability and needs Fifi with her at work, you handle it like any other request for a reasonable accommodation under the Americans with Disabilities Act. Some dos and don’ts:
DO: Have a policy for employees to ask for a reasonable accommodation
DO: Get enough information from Carmen (and maybe her doctor) regarding:
- Her disability
- How the dog’s presence will relate to performing her job duties
DO: Determine if it’s reasonable for Carmen to bring the dog to work
- Is there an alternative other than Fifi?
DON’T: Get hung up on whether the dog is “certified”
- You can make sure the dog is under control and house-trained
Remember: An interactive process is interactive — talk with Carmen and her doctor to see if you can come up with something that enables her to do the essential functions of her job (with or without Fifi).
What if You Are Dealing with a Service Animal?
Fun fact: Title I of the ADA doesn’t discuss or define service animals. Titles II and III (that apply to governments and places of public accommodation, including nonprofits), however, do define them and, according to the DOJ’s website:
Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.
If Titles II or III apply to you, the difference between a service animal and an emotional support animal is significant. In general, under Titles II and III you must allow a customer or user of your facility to bring a service animal (within certain guidelines) and may not have to allow an emotional support animal. If you are covered by Titles II or III, check out our blog post about a Title II service animal request.
Under Title I, it doesn’t matter if it is a service dog versus an emotional support animal — you just have to determine if it is a reasonable accommodation. Some factors to consider:
- Are the employee’s disability and the service dog’s function related? You can find out what service Fifi provides to Carmen and how, if at all, it relates to Carmen’s duties.
- Will Fifi’s presence improve Carmen’s ability to perform her job?
- Is Fifi sufficiently trained so she is not disruptive?
- Will allowing Fifi to come to work with Carmen present an undue hardship? (This last one is almost always no.)
You can suggest alternative accommodations to Fifi coming to work. Again, this is an interactive process so keep the dialogue going.
If you decide that Fifi can come to work, Carmen is responsible for taking care of, cleaning up after, and generally controlling her. You should consider the logistics, but it is ultimately Carmen’s responsibility and if she doesn’t take care of her dog, you may decide that Fifi coming to work is not a reasonable accommodation.
What if You Are Dealing with an Emotional Support Animal?
If Fifi is not a service dog, you still engage in the interactive process but probably have more leeway. You can still ask for medical information and ask the purpose of Fifi’s presence at work. You may have more alternatives available, like visits with Fifi during the day instead of having her present all the time. If you allow the accommodation but then find that Fifi’s presence is disruptive because of employee allergies or fear of dogs, you can revisit this decision.
One Size Doesn’t Fit All
Remember that the ADA’s focus is on the interactive process and treating each situation separately to determine if there is a reasonable accommodation. You might decide that Fifi coming to work is a reasonable accommodation but allowing the next employee to bring her dog is not.
As always, document your process and get advice when you need it.