Animals in the Workplace: New Accommodation for Employees With Disabilities

• Publication year: 2014
• Author: By Phyllis W. Cheng and Mallory Sepler-King

Animals in the Workplace: New Accommodation for Employees with Disabilities

By Phyllis W. Cheng and Mallory Sepler-King

Phyllis W. Cheng is a partner in the Los Angeles Office of DLA Piper and the former Director of the California Department of Fair Employment and Housing. Mallory Sepler-King is a Civil Rights Fellow at the California Department of Fair Employment and Housing.

Effective 2013, a little-noticed amendment to the disability regulations of the California Fair Employment and Housing Act (FEHA)¹ introduced assistive animals as a reasonable accommodation for employees and applicants with disabilities.²

Specifically, the amendment defines "[a]ssistive animal" to mean "a trained animal, including a trained dog, necessary as a reasonable accommodation for a person with a disability."³ Consistent with the California Disabled Persons Act (DPA),⁴ an assistive animal is either: a "'[g]uide' dog . . . trained to guide a blind or visually impaired person;" a "'[s]ignal' dog . . . or other animal trained to alert a deaf or hearing impaired person to sounds;" or a "'[s]ervice' dog . . . or other animal individually trained to the requirements of a person with a disability."⁵ Added to the mix is the new category of "'[s]upport' dog or other animal that provides emotional or other support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities such as major depression."⁶

The regulations further require that the assistive animal be "free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces."⁷ The animal must "not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace."⁸ Finally, it must be "trained to provide assistance for the employee's disability."⁹

This article identifies points of confusion in the limited body of service animal accommodation law, and calls for clear, employment-specific guidance.

ASSISTIVE ANIMAL RULES IN NON-EMPLOYMENT SETTINGS

Housing

Disability discrimination forms one-third of housing complaints received by the Department of Fair Employment and Housing. In 2004, the court of appeal held in Auburn Woods I Homeowners Association v. Fair Employment and Housing Commission¹⁰ that a home owners' association had violated the FEHA and discriminated against condominium residents, a married couple who suffered from depression and other disorders, by failing to reasonably accommodate their disabilities by permitting them to keep a small companion dog. Since Auburn Woods, the number of housing disability cases involving companion or comfort animals as a reasonable accommodation has soared.

Similar to FEHA case law in Auburn Woods, the federal Fair Housing Act (FHA)¹¹ has been interpreted to support accommodation of a companion animal as a reasonable accommodation. While the terms of FHA's implementing regulations do not specifically discuss service or companion animals (though seeing-eye dogs are given as an example of a reasonable accommodation), courts have held with increasing consistency that accommodation of a companion or support animal may be a reasonable accommodation under the FHA.¹² HUD Agency decisions further support this reading of the statute.¹³

Public Services and Accommodations

The protections Congress extended to disabled persons under the Americans with Disabilities Act (ADA)¹⁴ are intended to "assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals."¹⁵ It is well established under Titles II¹⁶ (public services) and III¹⁷ (public accommodations) of the ADA that an animal that qualifies as a service animal—a dog or miniature horse trained to perform a task in order to aid with a person's disability—must be accommodated by all businesses held open to the public, barring unique health and safety concerns.¹⁸ These requirements are enforced through California's Unruh Civil Rights Act.¹⁹

[Page 15]

ASSISTIVE ANIMALS IN THE WORKPLACE

Less well established are the rights granted to disabled employees who use service animals. There is no case law on accommodation of service animals in the workplace under the FEHA. However, regulations promulgated by the former Fair Employment and Housing Commission provide for an interactive process and refer to the ADA to illustrate that the regulation's terms should be construed to afford broad protection to disabled employees.²⁰ Title I of the ADA²¹ (employment) defines discrimination as "not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the covered entity."²² However, Title I does not explicitly mention service animals. Likewise, the U.S. Equal Employment Opportunity Commission (EEOC) has issued no limiting statement on what type of animals qualify as a "reasonable accommodation" in the workplace.

With limited and inconsistent case law on the matter, employers and employees alike are left without accessible guidelines or an understanding of their rights.

Accommodation of Service Animals

The purpose of the FEHA's disability protections is to ensure that an "individua['s] employment opportunities [are] commensurate with his or her abilities" as well as "to ensure discrimination-free access to employment opportunities."²³ With no FEHA case law on point, we look to similar anti-discrimination laws for guidance on accommodation of assistive animals in the workplace.

In Schultz v. Alticor/Amway Corp., a Michigan federal district court limited the accommodation requirement to situations in which it is necessary for the employee to perform the essential functions of his or her job.²⁴ In evaluating an employer's refusal to...