The California Office of Administrative Law recently approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair Employment and Housing Act (FEHA), went into effect on April 1, 2016.
In this blog series, we have highlighted some of the most significant aspects of the regulations that clarify an employer’s obligations in the workplace. The first article in the series, Preventing and Correcting Wrongful Behavior, covered an employer’s obligation to take all reasonable steps to prevent and correct wrongful behavior in the workplace. The second article in the series, The Transgender Workforce, covered new regulations and guidance concerning an employer’s obligation regarding transgender employees. The third article in the series, Sexual Harassment and Abusive Conduct Training, covered new rules concerning an employer’s obligation to train its staff to avoid conduct prohibited by FEHA.
The topic of this article is the new regulations concerning an employer’s obligation to reasonably accommodate an employee’s use of a service and/or comfort animal in the workplace.
New Language Clarify Existing Law and Best Practices
A request for an accommodation is a protected activity that could give rise to a claim of retaliation or discrimination. Courts were previously split on the issue of whether merely requesting an accommodation constitutes protected activity. Recent legislation—AB 987—clarified this point, and California Code of Regulation section 11068(k) now reiterates that it is unlawful for an employer to retaliate against a person for requesting a reasonable accommodation of a disability, regardless of whether the employer ultimately grants the request.
The regulation’s statement of purpose has also been amended to clarify that employers should approach all requests for accommodation from a problem-solving point of view. California Code of Regulation section 11064(b) has also been revised to specify that the interactive process requires an individualized assessment of (1) the requirements of the job at issue and (2) the specific physical and mental limitations of the individual that are directly related to the need for reasonable accommodation.
Updated Language Concerning Assistive Animals
In addition to general principles related to disability, the new regulations include language specifically related to assistive and support animals and provide the following information:
- The definition of an “assistive animal” includes guide dogs for the visually impaired, signal dogs for the hearing impaired and individually trained service dogs. This section of the California regulations closely tracks the language of the federal Americans with Disabilities Act.
- The concept of a “support” dog (or other animal) as a possible accommodation is unique to California. A support animal (sometimes called a “comfort” animal) is one that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, a traumatic brain injury, or a mental disability such as major depression.
- Although a guide, signal, or service dog must be specifically trained to qualify as an assistive animal, support animals do not require any specific training.
- Employers may impose some requirements on animals, whether assistive or support animals. Examples of such requirements include that an animal be free from offensive odors, display habits appropriate for the workplace, and not endanger the health or safety of the disabled employee or others.
Analyzing Requests for Support Animals in the Workplace
Like any other request for an accommodation, an employee’s request for a support animal requires an individualized assessment and a result reached through the interactive process. And like other accommodations, a support animal accommodation must be reasonable, effective, and not overly burdensome, and must be the product of a good-faith mutual interactive process. The accommodations analysis should address three issues:
- Reasonableness: Is the requested accommodation reasonable?
- Effectiveness: Is the request effective? Will this requested accommodation effectively allow the employee to perform his or her job functions?
- Undue Hardship: Does the request pose an undue hardship? With regards to support animals, this analysis requires that employers weigh issues related to other employees or customers, such as fears of the animal, allergies, or other issues.
Considerations When Faced With Accommodation Requests
In cases involving requests for support animal accommodations in the workplace, some specific analysis points may include the following:
The Department of Fair Employment and Housing has taken the position that an Internet certification demonstrating a need for a support animal is not a sufficient “medical certification” for interactive process purposes. Therefore, an employee should be prepared to present a note from his or her medical provider which documents the employee’s restrictions and need for accommodation in the same way he or she would for any other accommodation requests. It is not necessary for the note to disclose details about the employee’s underlying medical issues, but should confirm the existence of a disability or medical condition and restrictions the employee has as a result of the condition. For example, a note might indicate that the employee suffers from severe anxiety, which causes the employee difficulty in certain social settings and that the support animal provides the employee relief from that anxiety. The note need not indicate any underlying reasons for the employee’s anxiety.
Once an employer receives appropriate medical documentation, the analysis may proceed like it would for any other accommodation request: first, examining whether the accommodation request is reasonable based on the work environment, the industry or type of business at issue, and the employee’s position. For example, the employer might consider issues such as whether the animal will be in a place where health and safety issues might arise (for example, in an eating facility, clean room, lab, or patient care area).
Next, employers may consider whether the request will be effective in allowing the employee to perform the essential functions of his or her job—in other words, whether the restrictions, the requested accommodation, and the employee’s job are a “match.”
Finally, employers will want to ensure that the accommodation does not cause an undue hardship on the company, department, or employees in the department. The most common issues that arise with regard to an undue hardship analysis in situations involving a request for a comfort animal are potential allergies to or fear of the animal in question. If either situation was to present itself, an employer would want to carefully balance the rights of all employees to ensure compliance and cooperation.
Tips for Employers
- Train supervisors to treat requests for support animals as they do other requests for reasonable accommodations.
- Reiterate that the analysis required is the same:
- Is the accommodation request accompanied by requisite medical information?
- Is it reasonable?
- Will it effectively enable the employee to perform his or her job?
- Will it cause an undue hardship?
- Engage in the interactive process to determine whether to grant the request. Employers should consider reasonable effective requests but are not required by law to grant a request that would be ineffective or unduly burdensome. Also, as with other requests for accommodations, if (after careful consideration) the employer cannot grant the request, the employer should determine whether an alternative accommodation could be reasonable and effective for the disabled employee. For example, perhaps the employee’s request could be granted if the employee is moved to a different department or shift.