Did I get your attention there? Why would a horse need an office? It probably doesn’t, but then, again, would you give a pig a pancake? (If you don’t have young children or grandchildren, there really is a children’s book, “If You Give a Pig a Pancake” and it’s adorable. Ah well, I digress.) Who then, would give a horse an office? Why is an employment law blog even talking about giving a horse an office? We’ve been talking about animals at work, you see. Suppose an employee asks to bring his/her mini horse to work. You ask what will the mini horse do. The answer: Be there. This to you is ridiculous and you are ready to laugh that employee right out of your office. Before you do, however, read on, because there are some points you may need to consider…
(image from ofhorse.com)
First, let’s clarify a point. While we didn’t really get specific in the last two posts, we were working under the assumption that we were dealing with service animals at work. An animal that is trained to do something, such as a seeing eye dog, or an animal, (most often a dog) trained to perform certain tasks for the disabled person. If those tasks enable a disabled employee to perform his or her essential job functions then the service animal is a reasonable accommodation. If allowing that animal in the workplace does not pose an undue hardship then an employer may be required to do so under the Americans with Disabilities Act. If the employer is a federal government agency or a federal contractor it may also be required to allow the service animal under Sections 501 or 503 of the Rehabilitation Act, respectively.
OK, that’s all fine and well, but a mini horse? One that admittedly wouldn’t be doing anything? What’s up with that? The mini horse might be an Emotional Support Animal (ESA). A what animal? I promise I’m not making anything up. Certain animals, just by their presence are a comforting or calming influence to people with psychiatric disabilities, such as depression, anxiety, bipolar disorder and PTSD. If having an ESA at work would help such a person do their essential job function it may be a reasonable accommodation. You see where this is going, right? There are circumstances where you could be required under the ADA, or the Rehabilitation Act to allow that employee to bring the mini horse. Now, to be fair, it doesn’t have to be a mini horse, or a dog, (although there are reportedly health benefits to having a dog, according to wileypup.com.) Apparently almost any domesticated animal can be an ESA, including a mini pig, a cat, a hedgehog and even a snake. (If you don’t believe me, check with the National Service Animal Registry.)
Now the mini horse or other animal could still be a psychiatric service animal. For example, if it is trained to sense an anxiety act and then take a specific action meant to lessen or even prevent the attack, then it’s a psychiatric service animal. If the animal’s mere presence provides comfort it is an ESA and not a psychiatric service animal.
Let’s return to the Rehabilitation Act for a moment. If the employer is a federal agency, then under the Rehabilitation Act, it must, in addition to the requirements under the ADA, provide reasonable accommodations permitting individuals with disabilities to lead normal lives. In other words, providing reasonable accommodations that allow a disabled person to perform essential job functions may not satisfy all obligations under Section 501. An employer must then also do what is necessary to enable that employee to work in reasonable comfort. Here again, allowing the ESA might be required.
In any case, the request to have an ESA at work should be treated like any other request for a reasonable accommodation. An employer must engage in the interactive process. That means that if an employer can show that allowing their employee to bring their pet pig to work poses an undue hardship, the employer will not have to do so. Similarly, if there really is no room for a mini horse, or the mini horse is not trained, the employer can say “No.” Additionally, if the employer is able to find an equally or more effective accommodation the employer can offer that alternative and fulfill its obligations that way.
A number of you may be skeptical. “Are there any cases on this issue?” you might be asking. Well, there are a few regarding service animals. The first, McDonald v. Department of Environmental Quality, 2009 MT 209 (2009) discusses service animals, both for a physical and a psychiatric disability. While it’s a Montana Supreme Court case, it relies heavily on interpretations of the ADA and the Rehabilitation Act and is therefore very instructive. It also strongly suggests that such an accommodation is likely required under both laws. The second case, Branson v West 1999 U.S. Dist. LEXIS 7343 (N.D. Ill. May 11, 1999) the court found a doctor entitled to use a service dog that pulled her wheelchair, opened doors, and picked up items; it further held that a power wheelchair, which aided mobility was not an adequate alternative to the dog. While this case is a Rehabilitation Act case, if your organization receives federal funds it will probably be subject to its dictates. Also the principles are very similar to those under the ADA.
In the interest of fairness there are also two cases that come out against the employee and in favor of the employer on this issue. In Schultz v. Alticor/Amway Corp., 177 F. Supp. 2d 674, 678-79 (W.D. Mich. 2001) the court held that the employer did not violate the ADA for refusing to allow employee to bring service dog to work, when “dog was not necessary for the performance of any essential function of [employee]’s job.” In Edwards v. U.S. E.P.A., 456 F. Supp. 2d 72, 98 (D.D.C. 2006) the court held that a request for accommodation was unreasonable where the employee failed to demonstrate that bringing his untrained dog to work would resolve his stress and enable him to perform his job.
OK, I think we get the point. Sometimes you have to at least let every dog (or other animal) have its day. Come back next week and we’ll look into some exciting new topic. See you then!
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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