San Diego and California employers are familiar with the idea that “reasonable accommodations” are necessary when an employee claims a disability. Under the Americans With Disabilities Act (ADA), “disability” includes an emotional disability. A recent trend in treating emotional disabilities is to prescribe emotional support, comfort, and/or therapy animals. The issue has been in the news lately. See here. In one moderately famous example, in October 2018, police in Orlando had to remove an airline passenger who refused to get off a Cleveland-bound flight after she was found carrying an “emotional support squirrel.” Rodents were not on the list of airline-approved emotional support animals. See report here.

More and more frequently, employers are having to handle requests that therapy animals be allowed in the workplace. Schools and universities have been dealing with these issues for several years now. Naturally, as those students matriculate and enter the workplace, they are bringing their emotional disabilities and support animals with them.

So, does your workplace have to allow an emotional support squirrel? Under the ADA and the California counterpart statutes, an employer is only required to provide or to allow a “reasonable” accommodation. There are several legal issues here. First, what policies and procedures are in place for accommodation requests. If your business does not have written policies, you need to put them in place. An experienced San Diego corporate attorney can provide advice and assistance. Even if your business currently has a policy, it is probably time to update the policy to cover requests for emotional support animals.

Among the legal and practical factors with respect to “reasonableness” is the fact that therapy animals are generally not trained. Second, given the lack of training, there is a real concern about biting, scratching, and noise. The ADA allows a balancing of risks and benefits. An animal that is potentially dangerous is not a “reasonable” accommodation. But a written policy is an important step in preventing litigation over the issue. Third, there are general liability insurance issues here. Does your business and workplace have insurance coverage for an injury caused by a therapy animal? What about your workers’ compensation policy? Fourth, we are assuming for purposes of this article that your employee has a prescribed-by-a-doctor therapy animal. Fifth, as an employer, you are not required to accept the employee’s suggested accommodation. Other options can be provided.

Courts are beginning to provide some guidance. See Rousseau v. St. Helena Hospital, Case No. 4:17-CV-02985 HSG (US Dist. N.D. California 2018). That case involved litigation over service and therapy animals at a hospital. In resolving the case, the court entered a consent Order that provides some interesting insight. First, the Order distinguished service animals from therapy animals. The former are animals that have specific training and are necessary to allow individuals to do work or perform specific tasks. A seeing-eye dog is the classic example here. By contrast, a therapy animal has no training and does not assist the individual with any specific tasks. The animal’s purpose is support physical, social, emotional, and/or cognitive functioning for the individual. As such, the Order states:

1. Only dogs are recognized as service animals under title II and title III of the ADA.
2. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability.
3. Emotional support animals, comfort animals, and therapy dogs are not service animals under title II and title III of the ADA as these animals have not received the same training to do work or perform tasks for an individual with a disability. They are not entitled to the same access as a service animal.

The Order also recognized that different levels of access for service and therapy animals would be reasonable given different settings and locations within St. Helena Hospital. As an example, in a hospital, certain areas were required to be sterile environments.

As can be seen, there are a myriad of legal issues with respect to a “therapy squirrel.” In general, very likely an employer is not required to allow a therapy squirrel as an accommodation to an employee with emotional disabilities.

Contact San Diego Corporate Law

For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard was recently named as “Best of the Bar” by the San Diego Business Journal for 2018. Mr. Leonard has received that honor for the past four years. Mr. Leonard can be reached at (858) 483-9200 or via email. Like us on Facebook.

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