Service Animals in the Workplace

Service Animals in the Workplace: Considerations under the Americans with Disabilities Act and Colorado law.

The federal Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination on the basis of disability.  Colorado has promulgated analogous state laws.  One way that these laws provide assistance to persons with disabilities is by providing the right to be accompanied by a service animal in government buildings, on public transportation, in places of public accommodation and, as relevant here, in places of employment.  The ADA and analogous state laws provide a plethora of special rules governing the use of service animals.

So, how do you know when a “service animal” is entitled to enter the workplace?  And how can you verify the status of a purported service animal when the need arises?

Understanding some of the basics will help guarantee the protection of employees’ rights while helping to avoid running afoul of state or federal law.

What is a “Service Animal”?

A “service animal” is defined under the ADA and Colorado law as a specially trained dog that works with individuals to provide assistance with a physical, sensory, or mental disability.  Under certain limited circumstances, a miniature horse can also provide assistance as a service animal. Importantly, the ADA does not include monkeys, pigs, sugar gliders, birds, or any other animals that could theoretically provide support to a disabled individual.

There are kinds of assistance that a service animal can provide, including assisting the blind or deaf, assisting with rescue work, retrieving items, providing physical support, and helping persons with psychiatric disabilities.

To qualify as a service animal, there is no required state or federal certification process for hearing dogs, guide dogs, companion animals, or any other type of service animal.  The only requirement to be classified as a service animal is that the animal be individually trained to work or carry out tasks for the benefit of a disabled individual.  Most courts and the federal regulations interpreting the ADA reject the notion that an untrained dog providing comfort or emotional support can qualify under the ADA’s definitions.  In this context, there appears to be an important distinction between a trained “psychiatric service animal” which may qualify, and an untrained “emotional support animal” whose sole function is to provide therapeutic benefits by virtue of their companionship.  Unfortunately, determining whether a particular animal qualifies as a service animal requires a factual inquiry that depends upon all of the circumstances, and it can be difficult to be sure whether a canine truly qualifies as a service animal.

Finally, readers should be aware that there are important differences between “service animals” regulated under the ADA and Colorado law, and “assistance animals” governed under the Fair Housing Act (FHA) in the context of housing and public accommodations.  Confusion arises due to the fact that the terms “service animal” and “assistance animal” are often used interchangeably by landlords and public housing authorities, even though an the definition of an “assistance animal” under the FHA is much broader and inclusive.  For example, under the FHA, an “assistance animal” can be a cat, dog or other type of companion animal, and there is no need for the animal to be trained to perform any particular work or tasks.   In the context of employment, it is important to remember that only the definition of a “service animal” under the ADA applies.

When is a service animal allowed in a place of employment?

Under federal law, the use of a service animal may constitute a reasonable accommodation to which a qualified individual with a disability may be entitled.  The ADA requires an employer, upon notice that an accommodation may be necessary, to engage in an interactive process to determine whether a “reasonable accommodation” can be provided so that the disabled employee can perform the essential functions of the job without causing an undue hardship for the employer.  Some courts have found that a service animal can provide a “reasonable accommodation,” thus raising the possibility that the ADA may require an employer to allow a service animal in the workplace under the right circumstances.

Fortunately, Colorado law is much clearer.  Indeed, Section § 24-34-803, C.R.S., expressly provides that a qualified individual with a disability has the right to be accompanied at all times by a service into the individual’s place of employment.  Moreover, the statute makes clear that an employer must make reasonable accommodations to allow the presence of the service animal unless to do so would cause an undue hardship.  As a result, in Colorado at least, there is no question that service dogs are required to be allowed in the workplace.

Penalties

It is unlawful and illegal for anyone to deny access to a service animal or to threaten to interfere with any of the rights of a disabled person who is accompanied by a service animal.  Similarly, it is against the law to punish or attempt to punish someone for exercising or attempting to exercise any of their rights relating to the use of a service animal.  Thus, an employer who violates an employee’s rights with respect to a service animal could face civil and criminal liability for their violation.

It is also illegal for anyone to intentionally misrepresent that an animal is a service animal for the purposes of obtaining any of the rights described above.  Violators may face fines for any such misrepresentation.

Contact me if you have questions regarding your rights or obligations related to service animals in your Colorado workplace.

Damien Zumbrennen is an attorney with Frascona, Joiner, Goodman and Greenstein, P.C. His practice areas include Real Estate, Employment Law, Litigation, and Construction Defect. Contact Damien Zumbrennen.

Disclaimer — Content is general information only. Information is not provided as advice for a specific matter, nor does its publication create an attorney-client relationship. Laws vary from one state to another. For legal advice on a specific matter, consult an attorney.

T. DAMIEN ZUMBRENNEN