Animals in the Workplace: How to Tame the EPL Risks

A man walks into a bar with a pig (or an alligator, a horse, or another animal). This sounds like the beginning of a joke, but for a growing number of service businesses and Guest Contributor employers, it is no laughing matter. Such incidents are Kunal Shah of Counsel Wilson creating employment practices liability exposures and Elser Moskowitz Edelman & Dicker LLP have the potential to generate class-action lawsuits. Kunal Shah focuses his The appearance of service animals and emotional support, practice on labor and employment litigation and or comfort animals (ESAs) raises a challenging dilemma: counseling. Kunal defends employers from the must a business accommodate the animal and its handler, demand letter stage through the administrative and if it refuses, is the business risking a lawsuit? charge process, and eventually, litigation. Kunal also strives to provide clients with day-to-day Lack of clarity in federal, state and local regulations on employment counseling, training and advice as what constitutes an emotional support animal adds to a means of claims prevention. the confusion. Contributing to the dilemma is a large Kunal has extensive experience handling number of ESAs in public places and on board airlines. discrimination claims brought under Title VII, FMLA, ADA, ADEA and state employment Incidents involving untrained or aggressive animals, statutes, along with tort and contract claims and handlers suing after they were asked to leave, have related to various employment and independent escalated into problems that require risk management. contractor agreements. He also represents Retail insurance agents can help inform their insureds employers in connection with FLSA and state wage claims brought as single-plaintiff and about these exposures, and how to mitigate them while collective or class actions. Kunal routinely complying with applicable laws.1 advises clients on day-to-day employment issues such as, hiring, terminations, RIFs, complaint investigations, restrictive covenants, SERVICE ANIMALS VS. COMFORT ANIMALS trade secret protection and employee Federal, state and local laws differ on whether a classifications. He also conducts audits of business must admit ESAs, and some do not define such employer policies to ensure compliance with state and federal laws, and performs training animals. Other laws, however, offer detailed guidance. seminars for management and rank and file These include Americans with Disabilities Act (ADA) employees targeted at claims prevention. and the Air Carrier Access Act. For example, the ADA distinguishes between service animals and emotional support animals. Under the ADA, a service animal is “a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability.” Revised regulations also now consider miniature horses trained to perform specific tasks for individuals with disabilities to qualify as service animals.2,3

In contrast, the ADA does not consider “emotional support, therapy, comfort, or companion animals” to qualify as service animals because they have not been trained to perform a specific job or task. Many owners of ESAs cite the animal’s presence as providing comfort for anxiety and other mental challenges. But the ADA also draws a line between psychiatric service animals and ESAs. The ADA requires that the animal be trained to perform a specific action to prevent or mitigate its handler’s anxiety. For example, a veteran suffering from post-traumatic stress disorder might have a service animal that is trained to enter a space first to look for elements that could trigger the person’s PTSD symptoms.

Incidents where ESAs bite or attack others have raised public safety concerns. Even when a comfort animal is not aggressive, its presence can be disruptive. For example, in 2018 Frontier Airlines delayed a flight more than two hours when a passenger insisted on bringing aboard her comfort squirrel. She and her squirrel were removed from the plane, and the woman later sued Frontier. Other cases involving ESAs that mauled passengers also resulted in litigation.4,5

Public and private organizations can violate the ADA and invite liability if they improperly treat employees and customers with service animals. In general, all state and local governments, businesses and non-profit organizations that serve the public must allow service animals to accompany handlers with disabilities. Organizations cannot simply refuse service animals because of no-pet policies. A handler also has responsibilities, including keeping control of the service animal and caring for and feeding it. But most state and local laws are much less clear when it comes to emotional support animals.

Many owners of emotional support animals have purchased certifications from online registries, in an effort to demonstrate that their emotional support animal is not simply a pet. Businesses are often skeptical of the validity of such certifications, and worry that pet owners are merely trying to skirt restrictions on bringing their animals wherever they go.

Airlines in particular have struggled with steep increases in the number of passengers traveling with ESAs. Federal regulations for airlines generally have not defined emotional support animals and until recently largely required airlines to admit them on board.

In 2018, U.S. airlines carried more than 1 million passengers with emotional support animals, according to Airlines for America. A coalition of airlines and disability advocates asked the Department of Transportation to update its guidance on flying with such animals. The DOT responded with guidance allowing airlines to restrict emotional support animals that are too large, too heavy or younger than 4 months to safely travel in the cabin. In January 2020, the DOT proposed amendments to the Air Carrier Access Act that, among other things, would define a service animal as a dog specially trained to do work or perform tasks for a person with a disability, and would no longer consider emotional support animals to be service animals.6,3

©2020 CRC Insurance Services, Inc., CRC of California Insurance Services, CA Lic No 0778135. No claim to any government works or material copyrighted by third parties. Nothing on this website constitutes an offer, inducement, or contract of insurance. Financial strength and size ratings can change and should be reevaluated before coverage is bound. This material is intended for licensed insurance agency use only. This is not intended for business owner or insured use. If you are not a licensed agent please disregard this communication. 03042020-244 Emotional Support Animals Inflight7,8

In 2018 a woman was A passenger was barred In 2015, a traveler A woman was escorted escorted off her Frontier from boarding a United made it onto a off a US Airways flight Airlines flight after bringing Airlines plane with flight with a live in 2014 when her pig her emotional support her emotional support ESA turkey defecated and squealed squirrel on board. peacock in 2018 before the plane took off

MURKY AREAS Comfort animals supporting individuals with mental health disabilities present a murky area of potential liability exposure, according to Kunal Shah, attorney at law at Wilson Elser Moskowitz Edelman & Dicker LLP in Dallas. He focuses his practice on labor and employment litigation and advises employers on claim prevention.

“Mental disabilities, such as anxiety and depression, are challenging for businesses because they are not as easily observed as physical disabilities,” Shah said. “It can be obvious when a blind or hearing-impaired person is using an extremely well-trained dog for assistance. But is a comfort animal a service animal? Case law is still evolving, but the issue hinges on whether the animal performs day-to-day tasks related to the disability. Businesses cannot doubt the veracity of an individual’s disability, but they might have an argument over whether the use of a service animal as an accommodation actually allows the individual to carry out his or her essential tasks.”

“Employers have every right to ask for documentation from an employee. But that must be approached objectively, on a case-by-case basis. Businesses are not entitled to documentation related to an individual’s disability, nor can they ask questions about the animal’s certifications or qualifications. Businesses can ask whether the animal is a service animal, about the type of assistance the animal provides, and what it is trained to do for the individual. Businesses should be mindful of not doubting a person’s disability, whether that person is an employee, job applicant or customer,” he cautioned.

PITFALLS FOR BUSINESSES Businesses face several pitfalls in responding to employee or customer requests to bring animals onto their premises. Most businesses already comply with Title III of the ADA, which requires places of public accommodation to provide accessibility to people with disabilities, such as ramps, elevators and lifts, and to assist customers using mobility devices, Shah said. Businesses might, however, overlook the fact that Title III applies not only to people with observable disabilities but also those with mental disabilities, he noted.10

Violations of Title III can invite lawsuits that are easily packaged as class-action litigation, which can be financially ruinous for small and midsize businesses, Shah explained. Defending a class action can quickly exhaust insurance limits, making risk mitigation critical. Under the ADA, emotional support or comfort animals do not meet the definition of service animals. But some state and local laws do not draw that distinction. Under the ADA, unless a dog poses a threat to safety or health, the animal is legally allowed to enter public spaces, Shah said.

Businesses wishing to prohibit emotional support animals could post signs indicating a policy of allowing service animals to accompany their handlers. To avoid violating the ADA, businesses should train their staffs that they may ask only two questions if they are unsure whether a dog is a service animal: Is the dog required because of a disability? What work or task has the dog been trained to perform?

The ADA prohibits businesses from requiring medical documentation as a condition of entering public spaces.

In employment situations, “offices may not be public spaces, but the ADA still applies to the workplace for the purpose of making reasonable accommodations for individuals with disabilities,” Shah added. He recommends that employers be mindful of their requirement to engage in the interactive process to identify appropriate reasonable accommodations: Do not minimize or ask for proof of the stated disability. Treat the handler’s request like any other request for accommodation. Consult with the individual to ascertain the job-related limitations imposed by the disability. Assess the request and explore possible accommodations.

Businesses must determine whether they can reasonably accommodate the request and, if they can, do so, Shah noted. Laws such as the ADA generally do not require accommodating requests that pose an undue hardship on a business. Undue hardships are more likely for smaller organizations than for larger ones. Taking these steps not only can preserve the rights of the individual with disability, but also provide the foundation for a defense of discrimination claims, Shah added.

LIABILITY RISK MANAGEMENT Employment practices liability insurance covers acts of discrimination against or harassment of individuals, including third-party discrimination claims. The value of EPLI to businesses of all sizes cannot be overstated. As a duty-to-defend product, EPLI policies provide defense cost coverage. The expenses of mounting a defense, even when a lawsuit is without merit, can add up quickly.

Encounters with service animals and emotional support animals are likely to increase. As a result, organizations and their retail agents should invest time in understanding and mitigating their liability exposure.

BOTTOM LINE Individuals with disabilities who are accompanied by service animals have certain rights, whether as employees or customers in public spaces. Even though laws differ on the requirements for emotional support animals, businesses need to proceed with caution, to avoid discrimination lawsuits. Having adequate EPL insurance protection is strongly recommended. To ensure appropriate coverage and explore the impact of emerging risks, retail agents and their insureds should work with a wholesale specialist.

Contact your CRC Group producer for more information.

Contributors Mark Smith is Senior Vice President in CRC’s Seattle office and a member of the ExecPro Practice Group. ABOUT WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Wilson Elser helps individuals and organizations transcend challenges and realize goals by offering an optimal balance of legal excellence and bottom-line value.

More than 800 attorneys strong, the firm serves clients of all sizes, across multiple industries and around the world. Wilson Elser has 38 strategically located offices in the United States and another in London. This depth and scale has made them one of the nation’s most influential law firms, ranked in the Am Law 200 and top 56 in the National Law Journal 500.

Since their founding in 1978, Wilson Elser has forged a reputation as a formidable player in insurance coverage and defense. Our experience in this tightly regulated, cost-conscious industry has shaped a firm culture of accomplished professionalism and cost efficiency that delivers demonstrable value to clients.

ENDNOTES 1. “People Are Taking Emotional Support Animals Everywhere. States Are Cracking Down,” The New York Times, June 18, 2019; https://www.nytimes.com/2019/06/18/us/emotional-support-animal.html

2. Americans with Disabilities Act, https://www.ada.gov/regs2010/service_animal_qa.html

3. Air Carrier Access Act, https://www.transportation.gov/individuals/aviation-consumer-protection/service-animals- including-emotional-support-animals

4. “Woman kicked off flight over emotional support squirrel speaks out: ‘You will not take my baby from me,’” USA Today, Oct. 11, 2018; https://www.usatoday.com/story/travel/flights/2018/10/11/frontier-airlines-passenger-who- brought-emotional-support-squirrel-flight-speaks-out/1603615002/

5. “Emotional support dog attack on plane sparks US lawsuit,” BBC News, May 30, 2019; https://www.bbc.com/news/ world-us-canada-48458271

6. “New Rules for Animals in the Sky,” Airlines for America, Aug. 20, 2019; https://www.airlines.org/blog/new-rules-for- animals-in-the-sky/

7. 'Emotional support peacock' barred from United Airlines plane, January 31, 2018; https://www.bbc.com/news/world- us-canada-42880690

8. Why I need my ‘emotional support’ pig, October 26, 2018; https://www.bbc.com/news/av/world-us-canada-45999150/ why-i-need-my-emotional-support-pig

9. “U.S. Department of Transportation Seeks Comment on Proposed Amendments to Regulation of Service Animals on Flights,” U.S. Department of Transportation, January 22, 2020; https://www.transportation.gov/briefing-room/us- department-transportation-seeks-comment-proposed-amendments-regulation-service

10. “ADA Update: A Primer for Small Business,” U.S. Department of Justice, Civil Rights Division, March 16, 2011; https:// www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm