Daniel the duck, Stormy the parakeet and the Cali the Miniature horse have all made the news as Support Animals who provide disability assistance to their owners.
While a Service Animal has traditionally been understood to be a dog trained to assist someone who is visually impaired, increasingly people have been relying on a range of animals to provide assistance with a host of disabilities including anxiety, autism, PTSD, diabetes, mobility issues and hearing loss.
There is no universal definition of what is considered a Service Animal. For example, under the US’s Americans with Disabilities Act, (ADA) Service Animals are limited to (trained) dogs however entities covered by the ADA must modify their policies to permit (trained) miniature horses where reasonable. https://www.ada.gov/service_animals_2010.htm
In Manitoba, the Service Animals Protection Act defines “service animal” as an animal “trained to be used by a person with a disability for reasons relating to his or her disability.” Presumably then any animal can be used as a Service Animal, provided that it has been trained to be used by a person with a disability.
In Alberta, the Service Dogs Act prohibits discrimination against people using a Service Dog which is defined as a dog trained as a guide for a disabled person and having the qualifications prescribed by the regulations.
In Ontario, there is neither a clear list of what may or may not be considered a Service Animal nor is there yet a universally accepted standard for certification or training for Service Animals. In his decision in Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi, 2015 HRTO 433 (CanLII) Adjudicator Brian Cook wrote at paragraph 58 of his decision:
“….I agree that confusion about the status of service animals is an issue. While it is clear that people other than blind people may benefit medically from animals, this may not be widely understood. It similarly may not be widely understood that this has been codified in legislation and that in certain circumstances people are legally entitled to be accompanied by a service animal or, in the case of restaurants, a service dog.”
How then should Ontario employers respond to an employee who discloses that they have, for example, an anxiety disorder and asks to bring his emotional support animal to work?
In Ontario, there are a number of pieces of legislation that refer to Service Animals.
- The Ontario Human Rights Code prohibits discrimination, harassment, and reprisal in all of the areas covered by the Code, including employment. The definition of disability under the Code includes inter alia physical reliance on a guide dog or other animal but the code does not provide any guidance on which animals are included, whether training or certification is required in order to be qualified as a service animal or if in fact only physical reliance on the support animal will qualify as a service animal (and not for example reliance of reasons of mental health). The Ontario Human Rights Tribunal has considered a number of cases involving Service Animals and it is clear that each case will depend on its own particular facts. (Sweet v. 1790907 Ontario Inc. o/a Kanda Sushi, 2015 HRTO 433 (CanLII).
- The Accessibility Standards for Customer Service, Ontario Regulation 429/07 (the “Standards”) provides that “an animal is a service animal for a person with a disability if,
(a) the animal can be readily identified as one that is being used by the person for reasons relating to the person’s disability, as a result of visual indicators such as the vest or harness worn by the animal; or
(b) the person provides documentation from one of the prescribed list of regulated health professionals confirming that the person requires the animal for reasons relating to the disability.” O. Reg. 191/11: INTEGRATED ACCESSIBILITY STANDARDS Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11.
In response to these regulations, institutions such as the University of Waterloo have explicitly listed monkeys, ferrets, or miniature horses as examples of animals that are used to support in their AODA customer service standard.
- The Blind Persons’ Rights Act; R.S.O. 1990, CHAPTER B.7 defines a guide dog as a dog trained as a guide for a blind person and having the qualifications prescribed by the regulations. The law prohibits discrimination in services, accommodation, facilities or occupancy against blind persons using guide dogs.
- The Retail Sales Act refers to animals “specifically trained to assist and for the sole benefit of persons who are chronic invalids or who have a physical disability, and harnesses for such animals. 1996, c. 29, s. 26 (2).” And
- The Health Protection and Promotion Act, R.O. Reg. 562 requires that every operator of a food premise shall ensure that every room where food is manufactured, prepared, processed, handled, served… is kept free from live bird and animals. However, this Regulation creates an exception to the general rule that animals are not permitted and allows a Service Dog serving as a guide for a blind person or for a person with another medical disability who requires the use of a Service Dog.
While some of the references to Service Animals in Ontario’s legislation are more and less specific (i.e. some are limited to dogs while others are not, some requiring specific training and harnesses and others do not) when it comes to a request to bring a Service Animal to work, as a starting point, employers ought to approach the request as it would any other request for accommodations covered under the Ontario Human Rights Code. Some questions the Employer may want to consider include the following:
- Are there any reasons that the workplace must have a no-animal policy?
- Has the employee provided medical evidence to demonstrate the need for accommodation and that the use of a Service Animal is required for this particular accommodation?
- Has the employee stated whether the animal is trained to be in a work environment and whether the animal will be under the employee’s control at all times. (There is not, however, any universal recognized standard for Support Animal training nor is there any requirement in either the Ontario Human Rights Code or the AODA that requires any training.)
- Both the employee and employer will want to consider what will be required in order to allow the animal in the workplace (i.e. regular breaks to allow the animal to move around, relieve itself, clean up responsibilities)
- Employers may want to consider allowing the animal in on a trial basis
- Whether it is possible to develop an agreed communication that will go out to staff about the fact that there will be an animal in the workplace
Employers will also want to be mindful of the fact that while they are accommodating one employee, the introduction of animal into the workplace may trigger competing concerns for other employees (who, for example, may be allergic or have phobias of certain animals).
This is an area of the law that is likely to continue to evolve over the next few years.
Some additional Resources on Service Animals Include:
Canadian Foundation for Animal Assisted Support Services
Canadian Transport Agency – travelling with Service Animals
This blog post was written by Colleen Hoey, a Partner in the Employment team. She can be reached at 613-369-0366 or at Colleen.Hoey@mannlawyers.com.