Articles

WHEN PIGS FLY:

Accommodating Service and "Comfort" Animals in the Workplace

By Robert S. Nelson, Esq.

Nelson Law Group

Pigs can fly just fine, apparently; it's the landing that they have trouble with.

A 300-pound pig went berserk while traveling on a US Airways flight in 2000. The pig had behaved itself perfectly for most of the cross-country flight from Philadelphia to Seattle; it only had problems when the plane landed, scampering uncontrollably up and down the aisle. The animal, a Vietnamese potbellied pig, had not been traveling in the cargo hold, but rather had been seated in the plane's first class cabin so that it could remain with its owner, Maria Tirotta Andrews. Ms. Andrews told flight attendants that the pig helped relieve stress she suffered from a severe heart condition. The Federal Aviation Administration subsequently found that US Airways was right to let Charlotte aboard.

Why? Because the pig qualified as a "service" or "comfort" animal that is theoretically protected by disability accommodation laws.

In recent years, entities subject to disability laws (including employers) have seen a sharp increase in the number of patrons and/or employees who try to use animals as accommodations for physical, mental or emotional impairments. Many attribute the increase to guidelines the federal Department of Transportation ("DOT") issued in 2003 that dramatically expanded the scope of animals that can qualify as reasonable disability accommodations on airplanes. The guidelines permitted travel not only with "service" animals, such as seeing-eye dogs, but also with "comfort" or "support" animals, which generally have no specialized training but which nonetheless provide emotional support to their respective owners. Comfort animals have since been recognized as reasonable accommodations in housing discrimination cases, which traditionally foreshadow what will be considered reasonable accommodations in employment contexts. Employers should therefore recognize that they may be required to accommodate animals in their respective workplaces.

1. Disability Accommodation Law

In California, employers are required to permit "reasonable accommodations" of employee disabilities so long as doing so does not impose an undue hardship on the employers' businesses. Employers who deny requested accommodations have the burden of proving that they would have created undue hardships, which is generally a very difficult standard to meet. Employers will often be required to accommodate employee disabilities unless they have obvious and overwhelming reasons not to (e.g., the cost of the accommodation threatens the employer's economic survival, etc.). Employers can, however, ask employees to provide verification (i.e., doctors' notes) of their need for disability accommodations.

Both state and federal disability laws reject a "cookie-cutter" approach to accommodations in favor of an ad hoc analysis of what would be reasonable in each specific circumstance. Even so, it would likely be difficult (and it would certainly be unwise) to deny a service animal as a reasonable accommodation. California law generally defines service animals as seeing-eye or guide dogs that have been trained as such by licensed professionals; "signal" dogs that have been trained to assist the hearing impaired; or any other dogs that have been individually trained to the requirements of their disabled owners, such as personal aides and "seizure" dogs, which can sense and alert their owners to oncoming epileptic seizures. Service animals are allowed in places of public accommodation (e.g., restaurants, stores, apartments, etc.), which suggests that they can also be reasonably accommodated in most workplaces. They can be specially licensed and/or certified, but licensure is not mandatory. As long as an animal receives some sort of training related to the needs of its disabled owner, it can qualify as a service animal.

2. The Animal Accommodation Spectrum

Service animals represent one end of the animal accommodation spectrum, in that they should almost always be allowed as reasonable accommodations. At the other extreme are regular pets, which employers have no duty to accommodate. In between, however, is the amorphous category of "comfort" or "support" animals first recognized by the DOT regulations. Comfort animals theoretically can be anything, regardless of species or training, which in any way soothes or mitigates a mental, emotional or physical disability of its owner. Airlines have been asked to transport a veritable menagerie of comfort animals, including birds, ferrets, monkeys, goats, miniature horses and even a sharply-dressed duck (its owner dressed it up for the flight). However, the DOT guidelines specifically excuse airlines from having to transport animals that pose "unavoidable safety and/or public health concerns," such as reptiles, rodents and spiders.

3. Employer Obligations to Accommodate Comfort Animals

Whether and to what extent employers have to accommodate employee requests for comfort animals is a largely unsettled area of law. To date, most cases involving service and comfort animals have involved either public accommodations (e.g., patrons were denied access because of their service and/or comfort animals) or housing (e.g., disabled residents violated no-pets rules). Animals have been deemed to be reasonable accommodations in many of those cases, including at least two cases decided in New York in 2004 which allowed apartment tenants to keep emotional support animals despite strict no-pets policies; a 2003 dispute in which a Texas restaurant turned away a blind patron because he was accompanied by a seeing-eye dog; a 1998 dispute in which an Oregon public housing authority was held to have violated the federal Americans with Disabilities Act ("ADA") by not allowing a deaf resident to keep a hearing alert dog in a no-pets apartment; and a 1997 case in which a brewery was found to have violated the ADA by denying access to a seeing-eye dog (its owner wanted to take a public tour) on grounds that the animal could have contaminated the beer being brewed.

Some cases have denied requests for comfort animals on grounds either that the animals' owners were not disabled, or that the animals did not qualify as "service" animals because they never received specialized training. Many of these cases pre-dated the 2003 DOT guidelines. They also were decided under the ADA in jurisdictions other than California.

California defines "disability" much more liberally than the ADA, hence employers in this state will rarely be able to deny requested accommodations on grounds that they are not for valid disabilities. However, in March 2007, a Sacramento jury rejected the argument that a Maltese dog should be allowed at work as a disability accommodation on precisely those grounds. In Storm v. Consumers Self-Help Center, Sacramento Superior Court, Case No. 04AS05079, an employee claimed that she had been discriminated and retaliated against for bringing her tiny white Maltese, Lacey, to work. The employee, Chris Storm, claimed that she needed Lacey to soothe her severe anxiety and depression. Although Ms. Storm even went so far as to have Lacey registered as a trained "service" animal, her employer nonetheless fired her after several warnings that Lacey was not allowed at work. A jury eventually found that the firing was not discriminatory because Ms. Storm did not have a true "disability" (although she was awarded $45,000.00 on her claim that she was retaliated against for filing a disability grievance). The jury determined that Ms. Storm had not admitted any evidence that she suffered from a qualifying disability; it therefore never answered the question whether comfort animals should (or should not) be allowed at work.

Despite the result in Storm, employees will usually be able to successfully argue that they have conditions that qualify as disabilities under California law. As such, employers will usually have to show that comfort animals would pose undue hardships in order to lawfully deny comfort animal requests. This may be difficult to do, especially for dogs or other animals that could otherwise qualify as service animals. It would likely be hard to argue that a trained seeing-eye dog would not pose an undue hardship but an untrained comfort dog would (unless the comfort dog was not well-behaved).

4. What Should Employer Do?

Employers should consider the following steps to help ensure that they obey state and federal disability accommodation laws while also preventing their workplaces from turning into menageries:

•· Do not reflexively reject requests for service and/or comfort animals

Some employers immediately disregard employee requests to bring animals into the workplace, especially exotic or unusual animals. Although disability law is generally designed to be case-specific, one of the few constants is that employers will likely get themselves into trouble if they deny accommodation requests offhand. Employers must make good-faith effort to determine whether and to what extent accommodation requests, including animal requests, may be feasible. The requests do not necessarily need to be granted, but they must at least be investigated to determine whether they could be reasonable.

•· Require verification of a need for a service and/or comfort animal

Employers should insist that all employees who request disability accommodations provide medical verification that the accommodations are in fact needed. Doing this may help reduce the number of requests from people who have no actual need for service and/or comfort animals, and who in fact just want to have their pets with them at work.

•· Be flexible

Disability law generally encourages employers to be creative in devising accommodations that suit both their individual needs, and the needs of their disabled employees. Employers should therefore approach all accommodation requests (including requests for service and comfort animals) with a "let's-try-to-make-it-work" attitude. If employers remain receptive to accommodation requests, employees may be more likely to compromise on details which may help mitigate the accommodations' impact on the workplace. With animals, for example, employers may offer to allow animals in the workplace in exchange for employee commitments to only allow the animals into specific areas, and/or to bring them in only on specific days.

Robert S. Nelson is the founder of the Nelson Law Group, a San Bruno, California based law firm specializing in labor and employment matters. He can be reached at 415-689-6590, or by email.

Free Consultation With a Bay Area Employment Lawyer

I offer a free case evaluation by telephone. Call 415-689-6590 (866-290-0424 toll free) or contact me, a San Francisco employment lawyer, online to talk about your case.