In part one of our interview with Patti Perez, Esq., SPHR, president and CEO of Puente Consulting, and member of the DFEH’s Fair Employment and Housing Council, Perez shared insights on her role as a DFEH councilmember and discussed proposed changes to the California Family Rights Act (CFRA). In part two of our interview, she talked about other California regulations that are undergoing changes. In this third and final part of our interview, Perez talks about the reasonable accommodation provisions involving assistive animals in the workplace.
AMENEH ERNST: Do many people ask you about the regulations addressing companion animals?
PATTI PEREZ: Yes, at a recent program on disability accommodation, the majority of the questions from attendees were related to this topic.
The Council has drafted some clarifying regulatory language on the issue of assistive animals in the disability realm. The clarifying language emphasizes first and foremost that the assistive animal example shouldn’t be given any greater or lesser weight than any other example of a reasonable and effective accommodation.
ERNST: So an accommodation should be both reasonable and effective?
PEREZ: Yes. We understandably focus on the “reasonableness” component of the request (this is, after all, the statutory language). However, an equally important assessment is whether the accommodation request will effectively allow the employee to perform his or her essential functions. I have seen examples in which the employee proposes or the employer suggests an accommodation that might be reasonable, but doesn’t effectively address the intersection between the restrictions and job duties. A simple example is building a ramp for an employee who is hearing impaired—this accommodation might be deemed “reasonable” but it is in no way effective for this employee.
ERNST: What are your suggestions on how employers should approach the interactive process with a disabled employee and how an employer should perform the analysis on an accommodation request?
PEREZ: A lot of it is common sense, but an employer should also think of a few things before starting the interactive process. First and foremost, approach the issue with a problem-solving, positive attitude. The regulatory language is written in a positive and practical way that we hope helps employers and employees alike. We wanted to provide some real-life language to provide guidance. Employers might take a number of steps during the interactive process, including:
- To perform a complete and accurate assessment of the job’s essential functions, first consider the job functions. A particular position’s job functions may be included in a job description, but also may be gleaned from performance evaluations, job postings, or any other resource.
- Talk to the employee and begin the process of understanding the employee’s work restrictions. In most situations, this means the employee will need to obtain documentation from a medical provider. The main purpose of this discussion is for the employer to have an understanding of the employee’s limitations or restrictions.
- Compare the restrictions with the job duties to understand whether and how the two overlap.
- Think creatively . . . think outside the box. In many cases, the employer and employee are able to reach an agreement on a reasonable and effective accommodation quickly, but in some cases there is a need for further interaction, more fine-tuning, and more creative thinking.
The idea behind the regulations was to provide practical language and specific steps that can be followed but also to remind constituents that these are individual assessments that require thought and consideration. We expanded the list of possible accommodations to highlight this obligation, and one of the potential examples that arose as a possible accommodation was support animals; but this example is no different than any other potential accommodation, it still must be reasonable and effective in the specific circumstances of the situation.
ERNST: What’s an example of “thinking outside the box”?
PEREZ: There are tons of accommodations out there; it’s not an exhaustive list. I have an example from my own practice involving an employee who had a disability associated with a neck injury. The injury made it extremely difficult for her to look down and review documents. This employee’s job included document review and analysis as an essential function and the employer was stumped. We talked about it and I suggested trying different types of work stations (perhaps a stand-up desk) so that she wouldn’t have to move her neck downward to read. Another suggestion was to use a stand and clip I’d seen my administrative assistant use—it’s a document stand that is next to her computer, and she clips documents onto it to keep them secure. This too would provide the employee with the ability to review documents without having to bend her neck. Neither the employee nor the employer had thought of those options and they agreed to see if one of those might work.
ERNST: Why does the interactive process seem so difficult?
PEREZ: I think it’s because it has now become a legal term of art and employers and employees forget that the term is self-explanatory. “Interactive” means two-way and the requirement is simply to have a mutual conversation, a two-way exchange of information, a good faith conversation. If people remember that it means to chat, to interact, and to exchange information, then the process is much less intimidating.
ERNST: Another issue addressed in the regulations involves leaves of absence as a reasonable accommodation.
PEREZ: Yes, this was a topic we spent a lot of time discussing. Advocates for employers and employees cited this as a topic on which clarification was needed. Some wanted us to establish a bright-line rule on timing—how long was too long for a leave? However, a hallmark of the disability laws is that assessments should be made on an individual, fact-specific basis, so having a stringent rule was not in line with statutory intent or case law. On the other hand, some guidance was needed to provide parameters on employers’ obligations. The regulations reached that balance by providing language and examples on when a leave can be deemed reasonable and effective, and when it is not.
ERNST: Because of the employee’s privacy rights, is it harder for employers to determine if the accommodation is going to be effective?
PEREZ: There are some very strict privacy issues that an employer must always consider before asking for medical information. There are nuances, but generally speaking, in the context of the interactive process, the employer should focus on the restrictions that a particular condition has, rather than on details of the condition itself or on issues related to diagnosis or prognosis (which the employer is not entitled to request in California).
The process of asking for medical information is not an interrogation of the employee; it is a means to obtain information the employer needs in order to compare the restrictions to the job duties. And, since the process is mutual and interactive, the employee is also responsible for providing complete information to the employer.
ERNST: Are employers hesitant about being creative because sometimes even when they come up with a creative accommodation, they still get the same request back from the employee?
PEREZ: It is a delicate dance. In fact, one of the articles I’ve written on this is called, “It Takes Two to Tango.” Both sides need to have the attitude that they have to work together: The employer should view the employee as a company asset and ideally understand that it is to everyone’s benefit to make some changes or accommodations if it will allow the employee to continue to be productive. Similarly, the employee should approach the process with the belief that the employer wants to make it work and that providing necessary information does not constitute prying but rather a desire to make the situation work.
ERNST: And what if that means bringing an animal to work?
PEREZ: The idea of a service animal or companion animal really isn’t any different than anything else. It’s the same analysis—what are the restrictions, what are the job duties, what is the work environment, etc. So for example, if the employee works in the food industry, bringing an animal into the workplace will likely be deemed unreasonable or might constitute an undue hardship since the employer needs to comply with food and safety laws that prohibit animals in areas where food is being prepared.
In some cases, the analysis involving a service animal will involve balancing rights. For example, if one employee asks to bring an animal to work, but another employee has severe allergies or has an intense fear of animals, these will be factors to make an appropriate assessment of whether the request is reasonable and effective and/or whether it might constitute an undue hardship on the employer. The regulations also make it clear that any animal brought into the workplace must meet behavioral and cleanliness standards. Employers understandably fear that the service animal issue could be interpreted as a requirement, but it is simply one of many potential accommodations that might be considered in very specific scenarios.
ERNST: Do employers have to assume that an animal at work is going to be effective in terms of helping the employee cope?
PEREZ: On the effectiveness end, you still certainly are entitled to get a medical opinion regarding the effect that the animal will have on the employee (that is, whether and in what ways the animal’s presence will help the employee perform his or her essential functions). An employer has a right—just as with any other accommodation request—to ask for medical information on the employee’s restrictions from a qualified medical professional and to ask for additional information if what is initially provided is not sufficient.
ERNST: The Council is currently working on language that provides further clarifying language on this topic, right?
PEREZ: Yes, we have drafted proposed language that includes additional information on this topic and that incorporates many of the issues I’ve addressed here. Constituents can see the proposed language on the DFEH website. The proposed language emphasizes the fact that a request to bring a service animal into the workplace is no different from any other reasonable accommodations request—employers must undergo the same process to consider and analyze the request.
ERNST: At what point can an employer get a second opinion?
PEREZ: The regulations are very clear that employers have the opportunity to get a second opinion through an independent medical exam. But second opinions should only be used under certain specific circumstances; they should not be the first action an employer takes. The employer also has the right to question medical information if, on its face, it does not look legitimate; but again, this is not the first thing employers should look for.
As is true with all issues related to this topic, it’s about balance. For employers, I understand that it is a big job to handle these requests and to go through the process in a methodical but creative way. But it is extremely important that the employer representative approach this with the right mindset in each and every case. And of course, the obligation is mutual. The regulations include a lengthy section outlining the employee’s responsibilities to interact and to approach the process with an attitude of good faith and reasonableness.
ERNST: So would your motto be: “Interact, Interact, Interact”?
PEREZ: Do it by phone, do it by text . . . it may sound like a Dr. Seuss rhyme: with a fox, in a box. Most importantly, always do the right thing. Never let it be said it was you who broke down the process.