If I had a true love, I don’t expect he would provide me with a partridge in a pear tree, he might—don’t get me wrong—but I think it is more likely that he would recognize that Maine temperatures aren’t currently the best climate for keeping a pear tree alive. He may, however, provide me with a partridge in an attempt to at least stick with the 12-days of Christmas theme despite the current temperatures. Partridges are not, however, native to New England, or North America in general, so he would really have to go out of his way to provide such an extraordinary gift. Of course I would not dissuade him from going above and beyond, but in this case, I’d likely prefer something other than a partridge. You by now are scratching your head—how does employment law come into play here? What is her take on the first gift in the much loved Christmas Carol, “The Twelve Days of Christmas”?
What if that partridge was not a gift of my true love, but a service animal. Not a seeing-eye service partridge, but an “emotional support” partridge who loved me (and I loved he or she) and the partridge eased any depression or anxiety I may be suffering through. Earlier this month, you may have heard about the flying pig that was kicked off of the US Airway flight. (If you missed that you can catch up here). The pig was an “emotional support” pig that was certified as an “emotional support” animal.
The news has been discussing how easy it is lately to certify an animal as an “emotional support” service animal, but we need to discuss what your duties are as an employer when someone approaches you, or your HR Department, requesting the presence of a service partridge (or mini-horse, pig, dog, or rooster) in the workplace. While your initial reaction may be “absolutely not, that would be extremely disruptive,” or a violation of OSHA regulations, or any other of a myriad of initial reactions that would seem completely normal in this situation, you need to hold back, because this employee has now requested an accommodation and you are going to need to complete the interactive dialogue required by the ADA to determine whether the presence of a service animal is a reasonable accommodation. If you ultimately determine that my service partridge is not a reasonable accommodation, that may be fine, but you still have to enter into the interactive process and have a dialogue regarding what, if anything, could be a reasonable accommodation.