By Deborah Hopkins, March 14, 2018
Did you see the news a couple of weeks ago where an emotional support dog bit a little girl in the face on a Southwest Airlines flight? Or, how a Spirit Airlines customer flushed her emotional support dwarf hamster down an airport toilet after being told she was not allowed to fly with the rodent? (FWIW, the hamster-bearing passenger claimed a Spirit Airlines employee told her to flush the hamster, but Spirit Airlines has denied this accusation.)
If you didn’t catch those stories, you probably at least saw the headline in late January when United Airlines denied boarding to a woman’s emotional support peacock at Newark’s Liberty Airport. United’s statement to the media explained that the peacock “did not meet guidelines for a number of reasons, including its weight and size,” a fact which the would-be passenger had been told three separate times before she got to the airport. Should you ever need a bit of trivia for a cocktail party or a game show, in order to accommodate emotional support animals, the airline requires medical documentation at least 48 hours in advance of the flight, at which time they evaluate unusual animals “on a case by case basis.” While federal guidelines require airlines to permit passengers with disabilities to board with trained service animals or emotional-support animals, airlines may exclude from flights animals that are too large or heavy to accommodate on board, or animals that could cause a significant disruption of service during the flight.
No doubt about it, emotional support animals are becoming more popular in this country, but they are NOT the same as service animals. According to the ADA National Network, a service animal is any dog (or in certain cases, a trained miniature horse) “that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”
Let’s quickly set out some of the differences between service animals and emotional support animals:
Emotional Support Animals
There is no federal law that requires public organizations or businesses to accommodate emotional support pets, but sometimes people try to take advantage of the service animal stigma by bringing pets into public places and places of employment and hoping people are too afraid to ask if the animal is a trained service animal. It has gotten so bad, in fact, that some state and local laws have made it a crime to try to pass off an emotional support dog or pet as a legally-protected, disability-related service animal.
This topic of emotional support animals, while making the news this year, is not new. In a decision from 2006, the EEOC agreed with the Navy after the Navy denied an employee the use of an emotional support dog in the workplace, because there was no connection between the dog’s presence and the employee’s disability. While the employee was substantially limited in the major life activity of interacting with others, and the dog helped curb her anxiety and stress when she dealt with crowds and strangers, the employee was unable to show that she had to interact with crowds or strangers at work because her job consisted mainly of data-entry tasks. Struthers v. Navy, EEOC No. 07A40043 (June 29, 2006).
In another case from several years ago, an agency allowed an employee’s emotional support bird to stay at the office, as long as the bird was caged and the cage was kept clean. The employee requested to give the bird free range to roam outside the cage because he thought the bird would be unhappy cooped up, but the agency properly denied this request. Mermen v. USPS, EEOC No. 01A13112 (September 25, 2002).
Though there are not a whole lot of legal cases on this topic, we have seen an increasing number of federal employees attempting to bring emotional support animals to the workplace. What does this all mean for you? Here’s what you need to know: the EEOC takes that stance that an emotional support animal may be a required reasonable accommodation for a qualified individual with a disability, even if it is not a trained service dog. So, whether the animal is a trained service animal or an emotional support animal, your agency has a duty to engage in the interactive process to determine if allowing the animal in the workplace would permit the employee to perform the essential functions of her job without causing an undue hardship.
That’s right: even though public places like restaurants, bars, movie theaters, supermarkets, and hospitals are not legally required to provide access to their customers’ emotional support animals, federal agencies actually do have an obligation to consider options for applicants and employees who request emotional support animals or service animals in the workplace.
Hope this helps clear up some of the questions you might have. Hopkins@FELTG.com