This post was authored by Jennifer Rosner.
In the employment context, the statutory schemes that require reasonable accommodation for disabilities are the California Fair Employment and Housing Act (FEHA) and the Americans With Disabilities Act (ADA). The ADA defines a “service animal” as any dog (or in some cases, miniature horses) that are trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric or other mental disability. Animals that satisfy this definition are considered service animals under the ADA regardless of whether they have been licensed or certified by a governmental entity.
The FEHA regulations provide that an “assistive animal” is one that is “necessary as a reasonable accommodation for an individual with a disability.” Included in the definition of “assistive animal” is a “service dog or other animal” that is “individually trained to the requirements of a person with a disability.” In 2016, the FEHA regulations were amended to add “support animal” to the definition of “assistive animal.” A “support animal” is defined as one “that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression.” Accordingly, the distinction between “service animal” and “support animal” in California has become immaterial. Also, California law does not only apply to dogs or miniature horses but can include any animal that meets the above definitions. In Pennsylvania, a disabled man registered an emotional support alligator, which he said helps him to deal with his depression. (Like California, Pennsylvania does not limit support animals to a specific animal.)
In addition, the FEHA regulations do not require that an assistive animal is trained by a professional trainer. The regulations do allow an employer to request (1) a letter from the employee’s healthcare provider stating that the employee has a disability and explaining why the employee requires the presence of the animal in the workplace (e.g., why the animal is necessary as an accommodation to allow the employee to perform the essential functions of the job); and (2) confirmation that the animal is free from offensive odors, does not engage in behavior that endangers the health or safety of the individual with a disability, and is trained to provide assistance for the employee’s disability. The second component can be provided by the disabled employee.
The employer may challenge whether the assistive animal meets the above standards during the first two weeks that the animal is in the workplace based on objective evidence of offensive or disruptive behavior. An employer may also require annual recertification from the employee of the continued need for the animal.
An employer may deny an employee’s request to bring an assistive animal to the workplace if the accommodation would not be reasonable. Accordingly, employers should engage in the interactive process with the disabled employee to discuss whether the request for an assistive animal is reasonable. 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 the essential functions of his or her job?
- Undue Hardship: Does the request pose an undue hardship? With regards to assistive animals, this analysis requires that employers weigh issues such as whether the animal will be disruptive to the workplace.
Employers should document efforts to engage in the interactive process with the employee regarding a request for an assistive animal in the workplace. Moreover, to minimize risk and liability, employers should be vigilant in monitoring an assistive animal’s behavior and interaction with other employees and individuals who may be at the workplace.