Protections for People Needing Assistive Animals

A recent settlement extends California’s Fair Employment and Housing Act (FEHA) disabilities protection to rental applicants seeking to move in with emotional support pets.

In a complaint filed with the Department of Fair Employment and Housing (DFEH) against Adams West Associates, Ltd. and Bedford Group of Companies, LLC, a prospective tenant alleged FEHA discrimination when denied an apartment over his “comfort animals,” three cats. The applicant supported his claim with a psychologist’s note that the cats were needed to accommodate his mental disability. He also asserted this building had no formal pet policy. Defendants settled for $20,000 to compensate for the man’s higher rent elsewhere as well as his purported emotional distress from the rejection.

California law also protects employees with assistive animals, defined as “an animal that is necessary as a reasonable accommodation for a person with a disability.” These include service animals “individually trained to the requirements of a person with a disability,” (e.g. guide and signal dogs) as well as support animals that provide “emotional, cognitive, or other similar support to a person with a disability.” However, as California law does not specify the species of assistive animals, miniature horses, ostriches, and rats could all be in the running.

Of course, employers are not required to hire an applicant with an assistive animal. They are however required to engage in the interactive process to determine if the disability indicated can be reasonably accommodated.

Thus, best practices would include the employer’s request for a letter from the employee’s health care provider confirming the disability and explaining why the person needs the assistive animal in the workplace (e.g., how the animal can enable the employee to perform essential job functions). Employers can also require annual recertification of that need.

However, if proposed accommodation for the animal would work an undue hardship upon the employer’s operations or finances, it may reject the applicant along with his or her proposed animal.

Obviously, a business could decline to employ an applicant who required a poisonous snake as a workplace companion. Yet, even such extreme examples require the case-by-case interactive process, well documented.

California regulations recognize the accommodation process can extend to the first two weeks of allowing the assistive animal in the workplace. It may take such an interim period to determine if the assistive animal is free from offensive odors, is housebroken, or not otherwise a danger to anyone’s health or safety.

Thus, among California employer best practices:

• Recognize that any kind of animal might fit the definition on “assistive”;
• Engage in a good-faith interactive process addressing the appropriate accommodation for a disabled worker seeking to bring an assistive animal;
• Calendar the two-week period in which tentative accommodation may be rescinded on factors that demonstrate undue hardship for the hiring, including good behavior; and
• Ensure any written policy conforms to the legal requirements for assistive animals

An employment attorney can assist with drafting a policy or the interactive process when needed.

See also:

• How to Handle Assistive Animals in the Workplace (May 2018)
• How to Handle Customers’ Service Animals (May 2018)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

August 30, 2019