Are employees with mental health conditions asking to bring emotional support animals (ESAs) with them to work? This growing trend has created challenges for employers, while revealing an ambiguity in Title I of the Americans with Disabilities Act (the section that applies to employers).
Titles II & III of the ADA (which address accommodations required of public entities and businesses open to the public) narrowly defines the term “service animal” to those which are specifically trained to help a disabled individual be able to function (e.g., a seeing eye dog). ESAs are not included in the definition.
The problem is, however, that Title I of the ADA does not define the term “service animal”—and there has yet to develop meaningful case law that does—so that’s where the fur begins to fly (oh, that’s bad). While we wait for clarification, it’s good for employers NOT to ignore employee ESA accommodation requests, but to go through the usual interactive process (and remember, you can still verify that the employee has a disability, that the ESA is in fact the needed accommodation, assess whether the employee will be able to perform the essential functions of the job with the ESA present, consider undue hardship (including impact on coworkers), etc. If an employer is receiving a lot of ESA requests from employees, it may be helpful to create an “animals in the workplace” policy that lists out the factors that will be considered when requests are made, which may bolster the employer’s position to set limits or decline certain requests.
I have also noticed a trend: when the employee is asked by HR for additional information (including verification that the ESA has undergone training of any type), some employees become upset, claiming that the ADA prohibits such inquiries. What’s happening is that they are confusing limitations imposed by Title II & III of the ADA that are not applicable to Title I employment situations (e.g., Title III prohibits a store manager from asking a customer who brings in what appears to be a seeing-eye dog for verification that the dog is in fact a trained service animal). As a result, in such situations, it may be helpful to explain to the employee that a different Title of the ADA is involved in employment accommodation requests that allows for an appropriate verification process to occur.
This information is not provided as legal advice