One of our employees has asked to bring an emotional support dog to the office. I know about service dogs in the workplace. Do we legally have to allow an employee to bring a support dog to work?
The answer is maybe. Employers may have to allow an employee to bring an emotional support animal to work as a reasonable accommodation.
ADA and FEHA
The federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) protect job applicants and employees who have a disability or who are perceived as having a disability.
Under the ADA and FEHA, allowing an employee with a disability to bring an assistive animal to the worksite may constitute a reasonable accommodation.
Definition of Assistive Animal
Under California law, which is broader than federal law, an “assistive animal” is “an animal that is necessary as a reasonable accommodation for a person with a disability.” Assistive animals may include a:
- Guide dog trained for the blind or visually impaired.
- Signal dog trained for the deaf or hearing impaired.
- Service dog or other animal individually trained to the requirements of a person with a disability.
- Support dog or other support animal. (California Code of Regulations, Title 2, Section 11065(a)).
The FEHA regulations define a support animal 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.” (California Code of Regulations, Title 2, Section 11065(a)).
Support animals are not limited to dogs; they may include any type of animal that provides emotional, cognitive or other support to a person with a disability.
Although some assistive animals like guide dogs receive training, California law does not require assistive animals, including emotional support animals, to have any special training.
Reasonable Accommodation
When an employee asks to bring an emotional support dog or other assistive animal to the workplace, it should be handled in the same manner as any other accommodation request. The employer must engage in a timely, good faith interactive process with the employee regarding their request.
An employer should have a dialogue with the employee about the reasonableness and effectiveness of their request, that is, will bringing a support dog to work effectively allow the employee to perform the essential functions of his or her job. In addition, an employer should determine if the employee’s request poses an undue hardship on its business.
An employer may request a letter from the employee’s health care provider stating that the employee has a disability and explaining why the employee requires the presence of the assistive animal in the workplace. (California Code of Regulations, Title 2, Section 11069(e)).
For reasonable accommodations extending beyond a year, an employer can require an annual recertification from the employee of the continued need for the animal. (California Code of Regulations, Title 2, Section 11069(f)).
Like all accommodations, a request to bring an assistive animal to work must be determined on an individual, case-by-case basis.
Minimum Standard
Welcoming an emotional support dog or other assistive animal into the workplace as an accommodation does not mean that an unruly, smelly or aggressive animal must be tolerated.
The law allows employers to set some limitations for having assistive animals in the workplace, such as requiring the animal to be housebroken, be free from offensive odors and not engage in behavior that endangers the health or safety of anyone in the workplace. (California Code of Regulations, Title 2, Section 11065(a)(2)).
Employees who bring assistive animals to work may be required to confirm that the animal will behave appropriately in the workplace and meet the employer’s minimum standards.
If an assistive animal is offensive or disruptive within the first two weeks at work, an employer may challenge that the animal meets its minimum standards. (California Code of Regulations, Title 2, Section 11069(e)).
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
