Back in December 2012, the Fair Employment and Housing Commission (as it was then known) issued regulations greatly expanding protections to disabled job applicants and workers in California. The regulations require employers with five or more employees to permit “Assistive Animals” as a form of reasonable accommodation. These creatures include not only everyday service and signal dogs but any other “animal” providing emotional or other support to a person with a disability (with minimal additional qualifications). While support or assistive animals in the workplace are not new—they can get in the door under the Americans with Disabilities Act and other laws—California has substantially broadened their impact on day-to-day business. Below are a few tips to help businesses navigate this special breed of accommodation request.
There Must Be A Disability. California and federal accommodation laws naturally do not apply unless an employee has a disability. Where an assistive animal is sought as a reasonable accommodation, its justification will depend on the particular assistance the animal provides to enable the disabled individual to perform the essential functions of the job. Under California’s broad definition, any physical or mental condition limiting a major life activity (such as working, concentrating, and interacting with others) is sufficient to pass this initial hurdle. Employers may request certification from the employee’s health care provider, which broadly includes family therapists and social workers, stating that the employee has functional limitations requiring the presence of an assistive animal. Recertification of the need for a support animal may be done annually.
Household Pets Are Not “Assistive Animals.” At a minimum, all assistive animals must be trained to provide assistance for the employee’s disability, be free from offensive odors, display habits appropriate to the workplace, and not endanger the health or safety of others. Employers may require confirmation that the service animal meets these minimum requirements, but the regulations do not impose any formality. Challenges to the animal’s satisfaction of these standards may be made within two weeks of its entry into the workplace and only with “objective evidence of offensive or disruptive behavior.” Presumably, although the regulations do not speak to it, challenges after the two-week bar may be made if the service animal develops a new trait or threatens the safety of an employee.
Blanket No-Animal Policies Are Now Defunct. Employers must evaluate each request for accommodation on a case-by-case basis. Requests to use assistive animals must be given the same consideration. And where multiple effective accommodations to a disability are available, an employee’s preference to use an animal over alternatives should be given deference, absent undue hardship to the employer. An employee with a disability does not have an automatic right to have an assistive animal in the workplace; a thoughtful interactive process must sort out which accommodations are reasonable and do not cause undue hardship. Policies forbidding or even discouraging assistive animals as a form of reasonable accommodation should be revisited.
Has the “cat got your tongue?” The wide-ranging practicalities of bringing an animal into a workplace where it can interact with clients, vendors, and employees can be daunting. Industry-specific challenges, such as bringing animals near food preparation or manufacturing equipment, must also be creatively addressed. Employee complaints about safety, allergies, favoritism, or odors may also arise and will certainly complicate matters. Also, can assistive animals be excluded from certain areas of the office, such as the breakroom, and are businesses required to provide a regular place for the animal at work when it’s not in use? Navigating these hairy questions can make one feel like a dog chasing its tail! Our California Workplace Solutions lawyers have handled these and other issues and are prepared to guide you through each of these complex accommodation requests.