The Fair Employment and Housing Act (FEHA) regulations that went into effect on April 1, 2016 include 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.
A request for an accommodation is a protected activity that could give rise to a claim of retaliation or discrimination. Recent legislation 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. The California Code of Regulation 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.
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.
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 regard 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.
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.
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.