There is an increasing trend to own an ’emotional support animal’ – a pet that provides comfort to it’s struggling owner.
According to Lauren Salt, an executive in ENSafrica’s employment department, for a pet to ‘legitimately’ be considered an emotional service animal, it 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, she said.
“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,” she said.
What South Africa’s laws say
Salt said that emotional support animals are not currently 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,” she said.
“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,” she said.
Salt said that there is a similar obligation in South Africa’s Employment Equity Act (EEA), which requires employers to provide ‘reasonable accommodation’ to people with disabilities.
Bringing your dog to work
As this system can be open to abuse, Salt said that the first question to ask 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,” she said.
“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.”
Salt said that if an employer is satisfied that the employee is covered under the EEA, the next step is to inquire 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,” Salt said.
“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.”
Link between animal and capacity
Salt said that in the case 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, she said.
“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.”
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 also render the request for accommodation unreasonable, said Salt.
Employers will have to take the request seriously
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’, said Salt.
“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,” she said.
However, she cautioned that doing so may lead to an influx of requests for comfort animals.
“No matter how absurd the request for a comfort goldfish sounds, employers should not dismiss requests for emotional support animals out of hand,” she said.
“However, this does not mean that every request for accommodation will be genuine. Any employees just looking to bring their pets 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.”