Accommodating an employee’s medical needs can be complicated—especially when support animals are involved. News outlets throughout the world have covered the array of accommodation requests made in the workplace, including emotional support dogs, peacocks and even pigs.
But what does the law require? Would an emotional support clown qualify as an accommodation? In Episode 35 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw explain the three factors that employers should consider when an employee asks for a service or emotional support animal accommodation.
Factors to Consider
Shaw recommends that employers treat the employee who is asking for an accommodation as if he were the employer’s favorite employee. If it is a medical necessity, an employer has to accommodate the request. But some requests can be complicated.
Shaw points to an example in which an employee brought in a snake to cheer up a coworker. The coworker, who is afraid of snakes, then had a heart attack because of the snake. This scenario exemplifies the complexity of workplace accommodations, which can put employers between a rock and a hard place.
“Now you have a workers’ comp claim from the lady who had the heart attack, and if you didn’t let Betsy the Boa come in, you could have a ‘failure to accommodate’ issue,” Shaw tells Frank.
Employers should not be so afraid that they let everything go; they should set up parameters, Shaw says.
So, Frank asks, what does the law require?
Unfortunately, very little is left to the employer’s discretion, Shaw explains, but there are three factors that employers need to consider when responding to an accommodation request:
• Medical necessity. Is the accommodation medically necessary?
• Effectiveness. Is the support animal or accommodation effective for the employee to do the job?
• Hardship. Does the accommodation impose an undue hardship? Does the accommodation interfere with other employees’ health? Are other employees allergic to the animal?
The areas in which employers have some room to maneuver are hardship and effectiveness, Shaw says. For example, if an employee needs to constantly pet his support snake then he likely does not have the time to do his job, making the support animal ineffective.
Take the Time to Compromise
In the event that an employee’s service animal accommodation interferes with another employee’s medical needs (an allergy, for example), employers should treat both employees as if they were favorite employees, Shaw tells Frank.
Can the employees have their desks in different areas of the office? If neither employee wants to move, employers have to find ways to accommodate both employees. Employers can do something objective like draw straws or flip a coin, or sweeten the deal by offering a workstation near a window, Shaw suggests.
“You’re just trying to compromise—that’s all you’re trying to do,” Shaw explains.
If the needs of both employees cannot be met, then the employer can tell the employee requesting accommodation that the accommodation cannot be made. But this doesn’t mean that employers can say, “I’m a little too busy to be going down this road,” Shaw says.
“Unfortunately, when we’re talking about accommodations, accommodations are not only a back brace or a foot stool…we’re getting a much more broad universe of what is considered a reasonable accommodation,” she tells Frank.
Frank and Shaw stress that decisions on reasonable accommodation requests should not be made in isolation. The two recommend that employers consult with their legal counsel when responding to a reasonable accommodation request.
Even after #MeToo, the No. 1 claim filed with the Department of Fair Employment and Housing, and Equal Employment Opportunity Commission, and the largest jury verdicts are for failure to provide a reasonable accommodation, Shaw cautions.
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