Many employers believe that “assistive animals” are limited to service dogs for the visually or hearing impaired. What if an employee wants to bring a chinchilla, snake, or ferret to work for “emotional support?” Under state and federal regulations, employers may have to allow these and other animals in the workplace as a “reasonable accommodation” for disabled employees.
What Are “Assistive Animals”?
The Department of Fair Employment and Housing’s (DFEH) new regulations addressing disability discrimination issues contain several references to “assistive animals.” An “assistive animal” means any animal “necessary as a reasonable accommodation for a person with a disability.” These may include a “guide” dog trained to aid the blind or visually impaired, a “signal” dog trained to alert a deaf or hearing impaired individual to sounds, or a “service” animal trained to the particular needs of the disabled individual. Assistive animals may also include a “support” animal “that provides emotional or other support to a person with a disability,” such as employees with traumatic brain injuries or mental disabilities like major depression. The regulations do not limit “service” or “support” animals to dogs.
The federal American With Disabilities Act (“ADA”) imposes similar requirements. In May 2013, the federal Equal Employment Opportunity Commission (EEOC) issued new guidance on providing reasonable accommodations to individuals with specific disabilities such as cancer, diabetes, epilepsy, and intellectual disabilities. The EEOC explained that employers may be required to grant epileptic employees permission to bring service animals to work as a reasonable accommodation. The EEOC’s new guidance broadly defines “service animals” as any animal “trained to perform tasks for individuals with disabilities,” such as guiding the blind, alerting people who are deaf, pulling wheelchairs, alerting and protecting a person who is having a seizure, or “performing other special tasks.” The definition is not limited to dogs. Nor does it exclude any specific type of animal. The EEOC does not state what constitutes “performing other special tasks.” Presumably, this may include animals trained to provide emotional support to employees with mental disabilities. The EEOC’s new guidance can be found at: http://www.eeoc.gov/laws/types/disability.cfm.
Limitations on Allowing Animals at Work
So, must employers allow their employees to bring the family pet to work? Not necessarily. As with any accommodation, the assistive animal must be medically necessary and effective at helping the individual perform the essential functions of his or her job. If an employee with a disability asks to bring an assistive animal to work, the employer may ask for a letter from the employee’s healthcare provider stating that the employee has a disability and explaining why he or she requires an assistive animal as a reasonable accommodation (i.e., why the animal is necessary to allow the employee to perform the essential functions of the job). Also, he employer may assert the proposed accommodation would cause an undue hardship, or may engage in an interactive process to determine alternative accommodations.
An assistive animal must meet three additional requirements: (1) the animal must be free from offensive odors and demonstrate workplace appropriate habits; (2) the animal must refrain from behavior that poses health or safety risks to the disabled employee or others in the workplace; and (3) the animal must be trained to provide assistance for the employee’s disability. If the assistive animal does not meet these criteria, the employer may refuse to allow the animal in the workplace.
Employers may seek confirmation from the employee requesting the accommodation that the animal meets these requirements. Employers may also challenge whether the animal meets these requirements within the first two weeks the animal is in the workplace with “objective evidence” of the animal’s offensive or disruptive behavior. Finally, employers may require the employee to recertify annually whether he or she still needs an assistive animal at work. California’s new assistive animal regulations can be found here: http://tinyurl.com/k49nax6.
Tips for Employers
According to recent news reports, some individuals are buying fake “credentials” for their pets to qualify them as “service animals.” While certain recognized organizations train and certify “guide” dogs for the sight impaired, there are no standard certifications for “assistive animals” used or emotional support. Nor do the EEOC or DFEH require any such certifications. So, there is an opportunity for abuse, particularly with assistive animals.
However, employers should not dismiss such requests to being assistive animals to work without some analysis. Blanket rules or policies prohibiting all animals in the workplace may be deemed discriminatory on their face. Employers should evaluate each request under the criteria discussed above, ensure a health care provider has authorized the animal, and monitor the animal for disruptive or other behavior disclosing a lack of training.
When in doubt, employers should engage in a good-faith interactive process to obtain documentation of the employee’s disability and the basis for bringing an assistive animal to work. Employers should also discuss whether there are any alternatives (other than an assistive animal) that will aid the employee in performing the essential functions of the job. Employers with questions about how to comply with the new regulations or guidance should seek competent legal advice.