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The California Office of Administrative Law recently approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair Employment and Housing Act (FEHA), went into effect on April 1, 2016.
In this series, we have highlighted some of the most significant aspects of the regulations that clarify an employer’s obligations in the workplace. The first article in the series, Preventing and Correcting Wrongful Behavior, covered an employer’s obligation to take all reasonable steps to prevent and correct wrongful behavior in the workplace. The second article in the series, The Transgender Workforce, covered new regulations and guidance concerning an employer’s obligation regarding transgender employees. The third article in the series, Sexual Harassment and Abusive Conduct Training, covered new rules concerning an employer’s obligation to train its staff to avoid conduct prohibited by FEHA.
The topic of this article is the new regulations concerning an employer’s obligation to reasonably accommodate an employee’s use of a service and/or comfort animal in the workplace.
New Language Clarifies Existing Law and Best Practices
A request for an accommodation is a protected activity that could give rise to a claim of retaliation or discrimination. Courts were previously split on the issue of whether merely requesting an accommodation constitutes protected activity. Recent legislation—AB 987—clarified this point, and California Code of Regulation section 11068(k) now reiterates that it is unlawful for an employer to retaliate against a person for requesting a reasonable accommodation of a disability, regardless of whether the employer ultimately grants the request.
The regulation’s statement of purpose has also been amended to clarify that employers should approach all requests for accommodation from a problem-solving point of view. California Code of Regulation section 11064(b) has also been revised to specify that the interactive process requires an individualized assessment of (1) the requirements of the job at issue and (2) the specific physical and mental limitations of the individual that are directly related to the need for reasonable accommodation.
Updated Language Concerning Assistive Animals
In addition to general principles related to disability, the new regulations include language specifically related to assistive and support animals and provide the following information:
Analyzing Requests for Support Animals in the Workplace
Like any other request for an accommodation, an employee’s request for a support animal requires an individualized assessment and a result reached through the interactive process. And like other accommodations, a support animal accommodation must be reasonable, effective, and not overly burdensome, and must be the product of a good-faith mutual interactive process. The accommodations analysis should address three issues:
Considerations When Faced With Accommodation Requests
In cases involving requests for support animal accommodations in the workplace, some specific analysis points may include the following:
The Department of Fair Employment and Housing has taken the position that an Internet certification demonstrating a need for a support animal is not a sufficient “medical certification” for interactive process purposes. Therefore, an employee should be prepared to present a note from his or her medical provider which documents the employee’s restrictions and need for accommodation in the same way he or she would for any other accommodation requests. It is not necessary for the note to disclose details about the employee’s underlying medical issues, but should confirm the existence of a disability or medical condition and restrictions the employee has as a result of the condition. For example, a note might indicate that the employee suffers from severe anxiety, which causes the employee difficulty in certain social settings and that the support animal provides the employee relief from that anxiety. The note need not indicate any underlying reasons for the employee’s anxiety.
Once an employer receives appropriate medical documentation, the analysis may proceed like it would for any other accommodation request: first, examining whether the accommodation request is reasonable based on the work environment, the industry or type of business at issue, and the employee’s position. For example, the employer might consider issues such as whether the animal will be in a place where health and safety issues might arise (for example, in an eating facility, clean room, lab or patient care area).
Next, employers may consider whether the request will be effective in allowing the employee to perform the essential functions of his or her job—in other words, whether the restrictions, the requested accommodation, and the employee’s job are a “match.”
Finally, employers will want to ensure that the accommodation does not cause an undue hardship on the company, department or employees in the department. The most common issues that arise with regard to an undue hardship analysis in situations involving a request for a comfort animal are potential allergies to or fear of the animal in question. If either situation was to present itself, an employer would want to carefully balance the rights of all employees to ensure compliance and cooperation.
Tips for Employers
Andrea L. Fellion is an attorney with Ogletree Deakins in San Francisco. Patti C. Perez is an attorney with Ogletree Deakins in San Diego. © 2016 Ogletree Deakins. All rights reserved. Reposted with permission.
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