There is an increasing trend to own an “emotional support animal”, a pet that provides comfort to their owner and allows them to deal with challenges that might otherwise compromise their quality of life. Unlike service animals, such as guide dogs, emotional support animals can, it seems, conceivably be any animal. People own emotional support dogs, cats, parrots, snakes, hamsters and even peacocks.
However, there has been a spate of incidents on long haul flights where emotional support animals have, in flight, urinated, defecated, disrupted the flight and even bitten and mauled fellow passengers. This has seen American airlines, United and Delta included, ban emotional support animals on certain flights and clamp down on the abuse of the free flights for these pets.
Does an ordinary pet qualify as an emotional support animal?
No – not automatically. In order to “legitimately” be considered an emotional service animal, the pet needs to be prescribed by a licensed mental health professional to a person with a mental illness. A therapist, psychologist, or psychiatrist, for example, must decide that the presence of the animal is needed for the mental health of the patient. The owner determining that this is the case would likely not be sufficient.
The key difference between a service animal and an emotional support animal is whether the animal has been trained to perform a specific task or job directly related to the person’s disability. The tasks need to be specifically trained, not something instinctive the dog would do anyway.
Does a prescription for an emotional support animal translate into automatic entry into the workplace?
It is not specifically regulated in South Africa. However, in some jurisdictions, the rights of service and emotional support animals to access public areas (such as shopping malls, air carriers etc) are specifically regulated. Under the Americans with Disabilities Act (“ADA”), employers must provide “reasonable accommodations” to employees with disabilities and there is an ongoing debate in US courts as to whether reasonable accommodation is limited to allowing service dogs into the workplace, or whether this would extend to emotional support animals.
A similar debate is not yet happening in South African courts. However, there is a similar obligation in the Employment Equity Act (“EEA”) to that in the ADA, which requires employers to provide reasonable accommodation to people with disabilities.
What is clearly evident from the airlines’ experience is that the concept of an emotional support animal is susceptible to abuse. Who wouldn’t want to bring their pet to work? However, only individuals who meet the statutory definition of “people with disabilities” are entitled to accommodation and that accommodation must be reasonable in the circumstances.
So, the first question to be determined when a request for an animal in the workplace is received, is whether the employee truly has a disability. The EEA defines “people with disabilities” as those who have a long-term recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment. Where there is doubt, an employer should ask for medical proof that the employee’s condition is a disability in the context of the EEA and whether the emotional support animal is required in the management of the disability. If the employer is satisfied that the employee is covered under the EEA, the next step is to enquire whether the accommodation of having the emotional support or service animal in the workplace is reasonable.
“Reasonable accommodation” is defined as any modification or adjustment to the job or the working environment that will enable the person with a disability to have access to or participate or advance in employment. However, the EEA does not expand further as to what the limitations on “reasonable” are in the context of accommodation. The Code of Good Practice on Employment of Persons with Disabilities, which provides guidance to employers drawing on international legislation and best practice, provides that the employer need not accommodate a person with a disability if it would impose an unjustifiable hardship on the business of the employer. An unjustifiable hardship, in the circumstances, would be an action that requires significant or considerable difficulty or expense. This would involve considering, among other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business.
In the context of an emotional service animal, there must be a link between the animal and a reduction in the impact of the impairment of the personal capacity to fulfil the essential functions of their job. However, even if such a link exists, the request to allow the animal into the work environment may still not be reasonable. Allowing any untrained animal into the workplace that creates a safety hazard would likely not be reasonable, regardless of its impact on the owner’s impairment. The employer may be required to grant the request where it relates to a well-behaved dog (but one that has not been specifically trained to perform tasks for the disabled person) which does not disrupt the workplace, if it results in a reduction of the impact of the individual’s impairment in the performance of his or her duties. Conversely, if the dog barks, causes unpleasant odours, is disruptive or hinders co-workers’ performance of their jobs, the employer would likely be entitled to decline the request for accommodation.
Further, if there is another way to accommodate the employee’s disability or the employee has other alternatives, such as medication that would be as (or more) effective, this may render the request for accommodation unreasonable.
Also, at times, the request for an animal simply cannot be accommodated, regardless of how trained it might be. For instance, if a lease agreement strictly prohibits animals and the landlord is uncompromising, the accommodation may present an undue hardship to the employer where this would place the employer in breach of its agreement exposing it to cancelation or penalty fees. This may conceivably, however, result in a possible claim (by the employee) against the landlord under the Promotion of Equality and Prevention of Unfair Discrimination Act. Absent any external hindrances, though, if the service animal is the only viable option and where the possibility exists that the request may be reasonable, the employer will have to carefully consider the request, even if it is for a “comfort hamster”. In coming to the decision on the reasonability of the accommodation, the employer may need to allow the animal in the workplace on a trial basis to monitor the impact it has on the working environment. If the employer allows emotional support animals into its workplace, the employer should anticipate an influx of requests for comfort animals, especially in the dog-eat-dog world of corporate.
So, what is the high-water mark?
No matter how absurd the request for a comfort goldfish sounds, employers should not dismiss requests for emotional support animals out of hand. However, this does not mean that every request for accommodation will be genuine. Any employees just looking to bring their furkids to work should be kept on a tight leash and employees looking to take the mickey out of this trend should take heed, as this will likely land them in the dog box!