On June 22, it will be the 20th year of Pet Sitters International's “Take Your Dog to Work Day®,” which encourages employers to allow pets to accompany employees to the office. While the June 22 event is a single day event (or in some cases the culmination of a week-long promotion) originally designed to encourage pet adoptions or raise money for animal shelters, more and more employers are receiving requests from employees to allow pets in the workplace year-round. And based on recent reports, this is an important issue for millennial employees. A recent study found that 57 percent of millennial respondents would change jobs to an employer who offered a more pet friendly environment, and employers are taking notice.

Leaving aside occupations in which an animal is providing direct job-related assistance such as a police canine or a herding dog or a “visitation animal” that may accompany a health care provider to a hospital, rehabilitation center or nursing home, therapy animals, service dogs and simple pets are increasingly finding their way to work. Some companies such as Google allow almost all of their employees to take their pets to work regardless of reason, in part to accommodate their workforce's desire and in part because of a belief that animals in the workplace lower stress and encourage employee creativity. Currently, there is little empirical evidence regarding the benefits of pets at work although many employees self-report therapeutic benefits attributed to the presence of animals when asked or surveyed.

Animal Policies a Must

Some employers only open their facilities to service animals or emotional support animals; while still other employers, mainly due to workplace culture, health or safety or challenges of accommodation, will only allow service animals on their premises. For example, many places which prepare or sell food are unable to accommodate pets unless the animal in question is an actual trained service pet. And in all these cases, it is important for an employer to have policies in place to address both the request by employees and the reactions of co-workers and customers to the presence of animals on the job.

Employers receiving requests by employees to bring service animals or emotional support animals into the workplace as an accommodation for an ability challenge pursuant to the Americans with Disabilities Act (ADA) or for emotional assistance support need to know how to respond. The Equal Employment Opportunity Commission (EEOC) has reported that it is receiving a higher volume of calls seeking guidance on addressing animals in the workplace. And with physicians and therapists increasingly recommending the use of emotional assistance support animals to their patients, those patients are looking to keep those animals at work. All of which means that employers addressing these requests must undertake the same evaluation process as for other ADA accommodation applications.

Service Animals vs. Emotional Support

While allowing the use of service animals as part of a requested accommodation is not a new phenomenon, case law providing guidance to employers is sparse. Moreover, both the ADA and the Department of Justice guidance make a distinction between a service animal which is trained to “perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability” and is therefore a covered accommodation under the ADA, and an emotional assistance support animal that simply provides comfort or companionship is not. Muddying this “bright line distinction,” the EEOC filed a case in Florida last March taking the position that a company violated the ADA by failing to reasonably accommodate an employee's request to have an admittedly only emotional support animal in his truck cab while the employee completed his routes to assist in coping with post-traumatic stress symptoms, see EEOC v. CRST International, 2017 U.S. Dist. LEXIS 180761 (M.D. Fla. Nov. 1, 2017).

The bottom line for employers who receive a request for this type of accommodation is engage in an interactive process to evaluate the use(s) to which the employee will engage the service animal or emotional support animal, the actual needs of the employee for the accommodation and the ability of the workplace to provide ancillary accommodations created by having an animal on the premises, and consult with employment counsel before making any final decisions.

Aaron Tandy heads the Pathman Lewis employment law practice in Miami, helping employers and employees navigate complex employment issues. Contact him at [email protected].