Some start-ups are already doing it. And, other companies are considering the cost-benefit analysis of allowing employees to bring their pets to work. However, much like an unfamiliar dog, pet policies have to be handled with care. Upsides (improved morale for and recruitment of pet lovers) are counterbalanced by downsides (allergies, phobias, or messes). Thus, pet policies begin to micromanage (1) when, where and how often pets are allowed; (2) the types of pets; (3) grooming and behavior standards; and (4) who is liable for any pet-related damage – whether it be a dog bite or an oops in the hallway.
For pet-free employers, the problem arises when the office-Kim K. asserts that she needs to bring her lapdog to work because her pet Chihuahua is an “emotional support animal.” This is a commonly abused status that pet-owners like to use – along with a note from a doctor – to take their pets anywhere for emotional support (see Pets Allowed, Patricia Marx, The New Yorker (last visited Jan. 31, 2015).
Under the Americans with Disabilities Act (“ADA”), employers – upon becoming aware of the need for accommodation by a disabled employee – must engage in an interactive process to determine whether such request would be a reasonable accommodation. That was certainly the case for “Sugar Bear,” the Shih-Tzu whose owner requested to bring him to work in order to ease symptoms of Chronic Ulcerative Proctitis and Ulcerative Colitis. Assuming an actual request was made, the court held that the employer was obligated to consider whether the request for Sugar Bear to come into work was reasonable. Assaturian v. Hertz Corp., No. CIV. 13-00299 DKW KS, 2014 WL 4374430, at *9 (D. Haw. Sept. 2, 2014) (denying employer’s motion for summary judgment on accommodation claim).
So far, the case law is evenly split in favor of or against allowing pets:
Click here to view table.
There is – as yet – no case law on when such accommodations constitute an undue burden. For comparison, however, the Department of Justice regulations on the public accommodations section of the ADA suggest that “undue burden” may be difficult to prove. For example, other employees’ allergies or fear of dogs are not valid reasons to deny access to service animals because the employer can just separate the allergic or fearful employees to different areas. Conversely, service animals that fundamentally alter the nature of business operations; that cannot be controlled by their handler; that bite someone; or that are not housebroken would constitute an undue burden and may be denied. See 28 C.F.R. §§ 35.130(b)(7), 35.136, 35.150(a)(3), 35.164, 36.301(b), 36.302 (c)(1), and 36.303(a).
Like other ADA accommodations, requests for service animal accommodations will vary on a case by case basis. As our furry friends are increasingly invited to work, we expect to see more decisions defining when animals are allowed in the workplace. When those requests arrive, consider the Department of Justice’s regulations re public accommodations on what to ask at the outset of your interactive process: (1) is this animal is required because of a disability; and (2) what work or task has this animal been trained to perform. See U.S. Department of Justice, Service Animals.