Employers navigate a morass of federal and state employment laws on a daily basis.  Some of the more vexing and confusing laws are those related to employees with disabilities.  Often it is difficult for employers to know whether an employee is disabled or what the disability could be.  Questions that frequently arise concern whether an employee should be accommodated for a disability and how far the employer is required to go to effectuate an accommodation.

A recent trend which may create difficult situations for employers is an increase in fake service dogs.  Of course, there are many appropriate uses of service dogs; however, some individuals are abusing the privilege of having a service dog to gain special access to public places, housing, airports, and places of employment.  The Internet is replete with web sites that sell fake documents to identify dogs as service animals.  In February 2014, Phyllis Cheng, Director of the California Department of Fair Employment and Housing, testified at an informational hearing about the problem of “fake service dogs” and how truly disabled individuals are negatively impacted as a result of these fake service dogs.

A quick online search for service dog tags reveals countless web sites which sell service dog paraphernalia, including service dog vests, tags and disabled veteran service dog tags, among other products.  The vest on the dog, however, does not convert the animal into a legitimate service dog.  These fake products generally appear to be authentic and certainly could impact an employer’s decision whether to allow a service dog in the workplace as a disability accommodation.  This is particularly important because employers are extremely restricted in questioning the use of a service dog in the workplace.

In the employment context, the statutory schemes that require reasonable accommodation for disabilities are the California Fair Employment and Housing Act (FEHA) and the American’s With Disabilities Act (ADA).  The ADA does not specifically address the use of service dogs as a reasonable accommodation for employees, and the Equal Employment Opportunity Commission (EEOC) provides no guidance.  Nonetheless, the ADA defines a “service animal” as “any dog that is trained to do work or perform tasks for the benefit of an individual with a disability.”

Without a specific statement excluding service dogs from the place of employment, the logical conclusion is that, since the purpose of ADA is to protect individuals with disabilities, service dogs likely are a reasonable accommodation where appropriate.  While the ADA explicitly excludes “emotional support” service dogs from access to public accommodations, it does not specifically exclude them as a reasonable accommodation for employees in a workplace situation.  Employers, therefore, would be required, at a minimum, to evaluate whether an emotional support service dog is a reasonable accommodation for an employee making a request for such an accommodation.

In California, a “service dog” is defined as “any dog individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair, or fetching dropped items.” FEHA requires employers to accommodate an employee’s disability, and permitting a service dog in the workplace may be a reasonable accommodation.

Notably, there is not a requirement that a service dog be trained by a professional trainer.  In California, if a service dog owner applies for assistance dog identification tags, the owner is merely required to sign a declaration acknowledging that misrepresentation of the dog as a service dog could result in a fine or jail. (Penal Code, section 365.7)  However, if the owner does not obtain such tags and sign a declaration, it will not be possible to determine whether the service dog is properly trained.

California regulations provide minimal guidance to employers about service dogs in the workplace.  An employer may require that the dog be free from offensive odors, does not engage in behavior that endangers the health or safety of the individual with a disability, and be trained to provide assistance for the employee’s disability. While the first two provisions are easily observed, the employer may not have any knowledge of the dog’s training.  The dog could be sporting a fake vest and tag.  A fake service dog not properly trained may lead to liability for the employer if employees, customers, etc. are injured by an untrained fake service dog.

What can the employer do to verify that the dog is a legitimate, properly trained service dog?  Unfortunately, not much.  California regulations provide some protection by allowing an employer to request a letter from the employee’s healthcare provider confirming the disability and need for the service dog.  Also, the employer may require the employee to confirm the dog meets the criteria described above.  If the accommodation lasts longer than one year, medical documents substantiating the continued need may be required. (DFEHC Modified Amended Disability Regulations) However, the most important determination is whether the dog is trained.  California law does not identify any criteria to assist in determining whether a service dog is properly trained.  The ADA only requires that the dog be trained to mitigate the disability of the owner regardless of how the dog was trained.  An employer cannot demand proof of or require that the service dog be trained by a certified service dog trainer.

To minimize risk and liability, employers should be vigilant in monitoring a service dog’s behavior and interaction with other employees and individuals who may be at the workplace.