Work in the Time of COVID-19: FAQs for Employers

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In a recently filed lawsuit, Equal Employment Opportunity Commission v. CRST International Inc. and CRST Expedited Inc., the EEOC alleges that CRST violated the Americans With Disabilities Act (“ADA”) by denying an accommodation, failing to hire and retaliating against an applicant who uses a service dog to help with his post-traumatic stress disorder and mood disorder. The case raises issues related to required accommodations for employees who want to bring service animals and emotional support, therapy, comfort or companion animals into the workplace.

Unfortunately, there is no clear case law guidance specifying what employers are allowed to ask regarding service animals. Fortunately, the Job Accommodation Network (“JAN”), a service of the Office of Disability Employment Policy, has published guidance on this issue. Pursuant to the ADA, employers have the right to request reasonable documentation that an accommodation is required. The goal of an employer is to understand why the service animal is needed and what it does for the person.

JAN instructs that when an employee with a disability asks to use a service animal at work, the employer has the right to request documentation of the need for the service animal; that the service animal is trained; and that the service animal will not disrupt the workplace. This documentation, however, may not be available from a health care provider, so the employer may need to consider other sources.

In addition to the JAN, the US Department of Justice Civil Rights Division, Disability Rights Section, (“DOJ”), has prepared a list of frequently asked questions about service animals and the ADA. At the beginning, it is important to understand the definition of a “service animal” under the ADA. A service animal is defined as “a dog that has been individually trained to do work or perform tasks for an individual with a disability”. The task(s) performed by the dog must be directly related to the person’s disability. In addition, the dog must be trained to take a specific action when needed to assist a person with a disability (“Q1 and Q2”).

It is further important to note that emotional support, therapy, comfort, or companion animals are not considered to be service animals under the ADA, per the DOJ’s interpretation. The rationale is that these terms are used to describe animals which provide comfort just by being with a person, and because they have not been trained to perform a specific job or task; and as a result, they do not qualify as service animals under the ADA. However, the ADA does not require that service animals be professionally trained. (“Q3”, “Q4”, and “Q5”).

The issue becomes more unclear when you have a service animal which calms an employee who is having an anxiety attack. The DOJ’s interpretation regarding whether this animal qualifies as a service animal is that it “depends”. The analysis is that the ADA makes a distinction between psychiatric service animals and emotional support animals, and if the dog has been trained to sense an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, then it would qualify as a service animal. The DOJ’s interpretation goes on to say that, if the dog’s mere presence provides comfort, that it would not be considered a service animal under the ADA.

Employers need to carefully analyze all requests made by applicants and/or employees for the use of a service dog at work. It would be prudent for employers to have a written policy, which specifically addresses this issue. If questions arise, employers should consult experienced employment counsel.

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