Effective April 1, 2016, the Fair Employment and Housing Act (FEHA) was amended to address numerous aspects of discrimination, harassment and other workplace issues.
One issue that has become an recent “hot topic” is whether an employee is permitted to bring their “support” or “assistive animal” to work and what is a “support” or “assistive” animal.
Previously California laws relating to accommodations for employees with disabilities did not recognize support animals as a type of reasonable accommodation that may need to be provided. In December, 2012 the law changed to specifically include assistive animals as a possible reasonable accommodation.
Support Animals As An Accommodation
The recent FEHA amendments expanded the definition to provide an “assistive animal” as “an animal, including a trained dog, that is necessary as a reasonable accommodation for a person with a disability”. (California Code of Regulations, Title 2, Section 11065(a).)
In addition, the FEHA amendments added that a “support animal may constitute a reasonable accommodation in certain instances. A support animal is 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.” (California Code of Regulations, Title 2, Section 11065(a)(D).)
Under this expanded definition, support animals are not limited to dogs-they can include any other animal that provides emotional, cognitive, or other support to an employee with a disability.
Also, California law previously provided that “assistive animals” be “trained to provide assistance for the employee’s disability.” However, with the recent FEHA amendments, that requirement was eliminated so that assistive animals, including support animals, no longer need to have any special training.
What Should I Do Now?
Engage in the Interactive Process: As with any request for a reasonable accommodation, when an employee requests to bring their assistive or support animal into the workplace, employers should follow their standard procedures as to applicants or employees with a disability, which includes engaging in a timely “good faith on-going interactive process” with the employee regarding the request.
The interactive process must include on-going discussions with the employee as to:
- the need for the accommodation,
- how long the accommodation may be required, and
- if there are other less disruptive accommodations that would be reasonable and permit the employee to perform the essential functions of their position.
In evaluating whether an employer should grant the request as a reasonable accommodation, employers may require that the employee provide:
- Documentation from the employee’s health care provider of the need for the animal (for example, why the animal is necessary as an accommodation to allow the employee to perform the essential functions of the job).
AND
- Confirmation that the animal will behave appropriately in the workplace and meet the minimum standards for assistive animals. (California Code of Regulations, Title 2, Sections 11065(a), 11069(e).)
If the employee cannot provide these items, employers may deny the request and should further engage in the interactive process to determine if other reasonable accommodations exist.
As with all discussions with employees, employers are well-advised to document the interactive process.