Make Way for Ducklings (and other assistive animals) in the California Workplace

Topics: Discrimination, Harassment & Retaliation, New Laws & Legislation, Personnel Policies and Procedures

California’s newest regulations pertaining to the rights of the disabled in the workplace require employers to allow “assistive animals” in the workplace as a reasonable accommodation to certain disabled employees.  See CCR 7293.6 & 72940(k).
While service dogs for the visually and hearing impaired have become a more common sight in California’s workplaces, the regulations specifically permit other animals that provide “emotional or other support to a person with a disability….”

An employer need not play “possum” when confronted with an employee’s request to bring an assistive animal to the office.  First, an employer may require the employee to provide medical certification from the employee’s health care provider (which, broadly defined, now includes therapists, acupuncturists, dentists, physicians, clinical social workers, nurse practitioners, midwives, chiropractors, optometrists, psychologists, and podiatrists) certifying that the employee has a disability and that explains why the assistive animal provides an accommodation.

Still got your goat?  An employer may also require a certain level of training, namely that the assistive animal

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

But an employer must act jackrabbit quick, because it is only within the first two weeks that the assistive animal is reporting to the workplace that an employer is expressly permitted to challenge the animal, based on objective evidence of offensive or disruptive behavior.   (It is not clear what happens if an animal becomes violent, dangerous or its toilet training breaks down after the first two weeks).  Thereafter, annually, the employer may (and should) require annual recertification of the employee’s continued need for the support animal.

As assistive animals become more common in the workplace, employers will increasingly be confronted by the potential conflict and disruptions that service animals will provide.  Not only the distraction from the getting the job done, but other employees’ claims of allergy and other reactions to the animals which may then require additional accommodations.  It is not clear how the courts will react to these cases as there is no precedent.