• New California Disability Regs Allow Support Animals in Workplace, Mandate Broad Protections for Disabled Workers
  • February 21, 2013 | Authors: Jamerson C. Allen; Mark S. Askanas
  • Law Firm: Jackson Lewis P.C. - San Francisco Office
  • California employers should be prepared to welcome support dogs and other animals into the workplace as a reasonable accommodation for disabled workers requiring support under new disability regulations issued by the California Fair Employment and Housing Commission. The new regulations significantly expand protections for disabled workers and outline new requirements regarding reasonable accommodations, the interactive process, and proof of discrimination. The regulations took effect on December 30, 2012. Key provisions are set forth below.

    Construction and Purpose

    Like the federal Americans with Disabilities Act (“ADA”) and ADA Amendment Act of 2008 (“ADAAA”), the California Fair Employment and Housing Act (“FEHA”) will be broadly construed to protect individuals from disability discrimination and in favor of expansive coverage. The focus in disability discrimination cases under the FEHA will be on whether discrimination occurred, not on whether the individual has a covered disability.

    Make Room for Assistive Animals

    The new regulations require employers to allow “assistive animals” in the workplace as a reasonable accommodation. Assistive animals include not only service dogs for the visually and hearing impaired, but also support dogs or other animals that provide “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.”

    Employers may set minimum standards for assistive animals, such as requiring the animal:

    • To be free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces;
    • To not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace; and
    • To be trained to provide assistance for the employee’s disability.

    If an employee asks to bring an assistive animal into the workplace as a reasonable accommodation, the employer may require the employee to provide a medical certification from the employee’s “health care provider” (the definition of which is expansive, discussed below) stating the employee has a disability and explaining why the employee requires the assistive animal as an accommodation. The employer also may require the employee confirm the animal meets the employer’s minimum standards. The employer may challenge, based on objective evidence of offensive or disruptive behavior, that the animal meets its standards within the first two weeks the assistive animal is in the workplace. (The regulations are silent regarding whether an employer may assert such a challenge after the initial two-week period.) An employer may require annual recertification of the continued need for the support animal.

    Definitions Now Include Examples

    The definitions of physical and mental disability now provide specific examples. Mental disabilities include emotional or mental illness, intellectual or cognitive disability, organic brain syndrome, specific learning disabilities, autism spectrum disorders, schizophrenia, and chronic or episodic conditions such as clinical depression, bipolar disorder, posttraumatic stress disorder, and obsessive compulsive disorder. Physical disabilities include deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, cerebral palsy, and chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis and heart disease. The regulations also incorporate the ADA’s and ADAAA’s definitions of disability, and, to the extent that federal protections are broader, those protections will prevail over any conflicting provisions in the FEHA. Disabilities do not include, however, conditions that are mild and do no limit a major life activity. Examples cited in the regulations include the common cold, flu, minor cuts, sprains, muscle aches, bruises and abrasions.

    Like the definition of disability, the definition of major life activities also must be construed broadly and includes physical, mental and social activities, particularly those that affect employability or present a barrier to employment or advancement. Examples include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.

    Essential Job Functions

    Accurate, current job descriptions may constitute evidence of essential job functions. Likewise, reference to the importance of the performance of a job function in prior performance reviews also may demonstrate a job function is essential.

    Health Care Providers

    The regulations have expanded the types of professionals and therapists who are considered “health care providers” who may furnish a medical certification. Health care providers now include marriage and family therapists, acupuncturists, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, nurse practitioners, nurse midwives, clinical social workers, and physician assistants.

    Reasonable Accommodations

    The definition of reasonable accommodation includes specific examples of reasonable accommodations, such as reserved parking spaces, telecommuting, and modifying employer policies or supervisory methods. A reasonable accommodation also includes any modification or adjustment that is “effective in enabling an employee with a disability to enjoy equivalent benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.”

    Employers have an “affirmative duty” to make reasonable accommodations for the known disability of any employee or applicant, unless the employer can demonstrate, after engaging in the interactive process, that doing so would pose an undue hardship. Employers must consider all possible accommodations, except ones that create an undue hardship. They must consider the preference of the applicant or employee to be accommodated, but have the right to select and implement an effective, alternate accommodation.

    Employers need not eliminate essential job functions as a reasonable accommodation or lower a quantity or quality standard that is an essential job function. Leaves of absence may be a reasonable accommodation, as long as the leave likely will permit the employee to return to work. Employers need not provide an indefinite leave of absence or create a new position as a reasonable accommodation.

    Interactive Process

    The new regulations include a detailed explanation of the interactive process and emphasize that employers must start the process whenever an employee or applicant with a known disability requests a reasonable accommodation, or whenever they become “aware” of the need for an accommodation through a third party or by observation. In addition, employers must start the interactive process when an employee exhausts leave under other laws and the employee’s health care provider indicates that further accommodation is necessary.

    Employers may require the applicant or employee to provide medical documentation confirming the existence of a disability and the need for an accommodation. However, employers are prohibited from inquiring about the underlying medical cause of the disability. Employees and applicants must cooperate in good faith during the interactive process and provide reasonable medical documentation.

    Discrimination and Defenses

    The employee or applicant bears the burden of proving he is a qualified individual capable of performing the essential functions of the job with or without reasonable accommodation. If the employee establishes he is qualified, he then must show his disability was a factor that influenced an adverse employment action, but not the sole or even dominant cause for the adverse action.

    If employers engage in the interactive process, they may assert as a defense that no reasonable accommodation exists that would allow the employee to perform the essential functions of the position without imposing an “imminent and substantial degree of risk” to the employees or others.

    * * *

    California employers should review the new regulations carefully and revise their policies and practices as necessary. Employers should ensure job descriptions are current and should consider integrating essential job functions into employee performance review documentation.

    As a result of these new regulations, employers may see an increase in requests for reasonable accommodations, including requests by employees to bring “support animals,” other than traditional service dogs, into the workplace. Having support animals in the workplace likely will create a myriad of issues: What should an employer do if a co-worker is allergic to the support animal? Where in the workplace will the employee be permitted to have the support animal - break rooms, cafeterias, or to client or team meetings? Given that this will be an evolving area of the law, employers should consult with counsel when considering such requests.