Over Thanksgiving, CNN ran a story about a woman who brought her “emotional support animal,” a pig, on a flight. Based on the story photo, the pig looked to be about the size of a French bulldog. Ultimately, the woman was asked to leave because the pig was howling and had defecated. However, that someone can waltz onto an airplane with a live farm animal in the first place is noteworthy.
The legal framework surrounding a company’s obligation to permit customers with disabilities or employees to bring a service animal onto company property is rapidly developing, with some states going much further than the Americans with Disabilities Act.
Under the ADA, reasonable accommodation of a disability can include permitting a “service animal” to accompany a person with disability. The ADA defines “service animal” in a fairly limited manner: only dogs that are “individually trained to do work or perform tasks for the benefit of an individual with a disability.” However, miniature horses have also been deemed an acceptable serviceanimal.
There is nothing in the ADA that permits an “emotional support animal,” however. In other words, only an animal that does work is required, not an animal that just unconditionally loves its owner into well-being.
Preferred Accommodation Flushed Away
Jeffrey Gordon, a merchandiser for Acosta Inc., took a diuretic medication that required frequent restroom breaks. Acosta accommodated Gordon by allowing him to take as many bathroom breaks as he needed without repercussions.
After an argument with his supervisor, Gordon requested to be transferred to an administrative position away from the supervisor. He later claimed the transfer would allow him better access to restrooms. After Acosta denied the transfer, Gordon resigned and brought an Americans with Disabilities Act lawsuit against the company.
The U.S. District Court for the Western District of Texas found that Acosta reasonably accommodated Gordon, holding that the ADA “provides a right to reasonable accommodation, not to the employee’s preferred accommodation.” Because both parties maintained that Gordon was able to satisfactorily meet his essential job duties under the existing accommodation, there was no evidence that Acosta failed to provide a reasonable accommodation. Gordon v. Acosta Sales and Marketing Inc., Case No. 13-00662(Dec. 22, 2014).
IMPACT: Though the ADA requires employers to accommodate employees with disabilities, it does not require employers to grant preferredaccommodation.
James E. Hall, Mark T. Kobata and Marty Denis are partners in the law firm Barlow, Kobata and Denis, which has offices in Los Angeles and Chicago. To comment, email firstname.lastname@example.org.
California, ever the outlier, has gone much further. Its laws permit guide dogs, signal dogs, service dogs, support dogs or other animals. Support animals expressly include animals that provide emotional support because of various mental disabilities, including depression. The California Code of Regulations include some “minimum standards for assistive animals,” which require the animal to: “be free from offensive odors” and “display habits appropriate to the work environment,” refrain from engaging in “behavior that endangers the health or safety” of the owner or others in the workplace; and be “trained to provide assistance” for the employee’s disability.
However, there is no limitation in the regulation as to what type of animal someone might bring as an assistive animal. Theoretically, any animal that could meet the aforementioned requirements would qualify. According to the National Center on Health, Physical Activity and Disability’s blog,ferrets and boa constrictors have assisted those with seizure disorders, a parrotrelieved one man’s bipolar disorder, and capuchin monkeys can perform manual tasks.
The rise in service animals of all types has been coupled with a growing trend at some companies to permit workers to bring animals to work just because they like to. With news about this type of perk growing, employees appear to have an increasing sense of entitlement to have an animal at work with them. Perhaps it is good for morale because animals have been proven to be therapeutic for people who are ill.
For employers, this means even the most outlandish request to bring a pet to work has to be carefully considered, especially in California. Employers should exercise their right to obtain information and documentation confirming the need for accommodation, and to obtain information about training the animal has received and whether it has the ability to refrain from any behaviors unsuitable for the workplace.
In other words, you can still kick a pig off an airplane if it howls.