Ask The Lawyer By: Daniel A. Gwinn, Esq.

DOGGING IT? WORKER CLAIMS PET RETRIEVER IS NEEDED AT WORK FOR ‘EMOTIONAL SUPPORT.’

QUESTION: I’m a manager at an engineering firm. Recently, one of our employees showed up at work with his dog, Samson, a large golden retriever, claiming the dog is his “emotional support” animal, and he is allowed by law to have him in the workplace. He produced a signed document from a therapist that identified Samson as an emotional support animal that the worker needs to help him deal with stress. I like dogs, but this seems suspicious. Under threat of a lawsuit, I have allowed Samson to stay while I check this out. What’s your call?

ANSWER: If the employee has disability – whether physical or mental – you may be required to provide a “reasonable accommodation” for him under the Americans with Disabiities Act. This accommodation could include allowing him to bring a dog to work.

But, that doesn’t mean every worker can bring a pet to work. The employee must have a legally recognized disability. Under the ADA, a disability is defined as having a mental or physical impairment that substantially limits at least one major life activity. While major life activities are interpreted broadly – working is a major life activity, so are eating, sleeping, interacting with others, cell regeneration, etc. — “stress,” without more, may not meet this admittedly low burden.

Assuming that the worker’s stress is a bona fide disability under the ADA, the law would then require you to consider whether allowing your employee to bring Samson to work is a “reasonable accommodation.” The fact that he is an “emotional support” dog, rather than a “service dog” (a dog trained to provide assistance, like a seeing eye dog), may make no difference under the law. While the section of the ADA dealing with access to public facilities only requires consideration of the use of service dogs, the law dealing with employment does not address service animals  — or emotional support animals — at all.

The focus, therefore is the impact allowing Samson to come to work has not only on the his owner’s ability to do his job, but on the company’s business. Samson’s presence must not only enable the worker to stay on the job and get his work done, but allowing the dog to come to work cannot create an undue hardship for the employer or constitute a “direct threat.”

Samson might pose a direct threat if he is unusually aggressive/protective, threatening or even trying to bite people who come near his owner. Samson’s presence might present an undue hardship if, for instance, he needs frequent trips outside to take care of business – trips which might not only take Samson’s owner away from work, but put on hold the work of those the owner works with, and cause a real loss in productivity.

In a recent case, a court found a request unreasonable where an employee asked that he be allowed to bring his dog to work to help combat PTSD symptoms, but the work environment – a factory – was not safe for the dog, and was so loud that the dog’s presence was viewed as unlikely to have a beneficial effect (and might have stressed out the dog).

Since this worker has apparently already threatened some kind of legal action, you need to tread very cautiously. Find out what you can about Samson’s training, and the kind of support he provides the worker, and see if there are any ways the employee could receive support without the dog, determine the impact allowing the dog at work has both on his owner and on the work of other employees, and discover whether Samson presents any difficulties for other workers.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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