It is becoming more and more common to see animals accompany their owners into stores and workplaces to assist as service or assistive animals — but whether someone has a legal right to do so depends on the circumstances.
There are two situations where you may have to allow animals in the workplace:
- To provide an accommodation for an applicant or employee with a disability; and
- To allow a disabled customer or patron to bring a service animal into your place of business.
Different rules apply to each situation, so it is important to look at them separately.
Animals on the Job: Assistive vs. Service Animals
Let’s start by detailing the differences between the types of animals allowed in workplaces and places of business.
First, “assistive animals” generally help a person with a disability to perform his/her job. Under the California Fair Employment and Housing Act (FEHA), an assistive animal is an “animal that is necessary as a reasonable accommodation for a person with a disability.” Examples of assistive animals include:
- Guide dogs trained for the blind or visually impaired;
- Signal dogs or other animals trained for the deaf or hearing impaired;
- Service dogs or other animals individually trained to the requirements of a person with a disability; and
- Support animals.
The last type of assistive animal — the “support animal” — is very broadly defined. A “support animal” is a dog “or other animal that provides emotional, cognitive, or other similar support to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities, such as major depression” (2 CCR 11065(a)).
There is no training requirement for support animals; the sole requirement is that the animal provides support to the employee. Between the broad legal definition and the lack of required training, virtually any animal could qualify as a support animal under the law.
Second, “service animals” may come into your business to assist a customer with a disability. While the scope of animals that may qualify as an assistive animal for employees under the FEHA is quite broad, the definition of service animal under the Americans with Disabilities Act (ADA) for purposes of access to public accommodations is much narrower. (California’s Unruh Act does not define service animals but adopts the ADA definition.)
Under the ADA, service animals must be “individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability” (28 CFR 36.104). Animals that provide “emotional support, well-being, comfort, or companionship” will not qualify as service animals.
Service animals are limited to dogs and, under certain circumstances, miniature horses. No other animals can qualify as service animals under the ADA.
When is an Assistive Animal a Reasonable Accommodation?
Both the federal ADA and California’s FEHA prohibit employers from discriminating against applicants and employees because of a mental or physical disability. Those laws also require that employers reasonably accommodate an individual’s disability, unless the employer can show that the accommodation would impose an undue hardship.
A “reasonable accommodation” is any modification or adjustment to a job, employment practice or work environment that allows an individual with a disability to enjoy an equal employment opportunity. A reasonable accommodation can include a modification or adjustment that enables an employee to perform essential job functions or enjoy equivalent benefits and privileges of employment that similarly situated employees without disabilities enjoy.
Reasonable accommodations can take many forms, including use of assistive animals in the workplace.
As with any request for accommodation, the answer to whether an employer must allow an assistive animal is, “it depends.” Each request for accommodation is unique. You should always conduct an individualized assessment to determine whether the requested accommodation would be reasonable under the circumstances.
If an employee asks to bring an assistive animal into the workplace, you should engage in a timely, good-faith interactive process with the employee.
As part of this process, you can require that the employee provide medical certification from a health care provider confirming that he/she has a disability and explaining why the employee requires the assistive animal in the workplace (e.g., why the animal is a necessary accommodation to allow the employee to perform the essential functions of the job).
Assuming that the employee has a disability and the use of an assistive animal is a reasonable accommodation, you must allow the employee to bring the animal to work unless doing so would impose an undue hardship.
As a condition of allowing an employee to bring an assistive animal to work, you can ask the employee to confirm that the animal will behave appropriately in the workplace and meet minimum standards, such as being free from offensive odors, being housebroken, and not endangering the health or safety of anyone in the workplace. If the animal doesn’t behave appropriately, you can challenge whether the animal meets the minimum standards for being in the workplace. However, you can only do so during the animal’s first two weeks in the workplace, so pay close attention and promptly address any issues that arise.
Requests for assistive animals in the workplace can also give rise to a variety of other issues, including complaints from other employees about the animals or conflicts with other laws that may preclude an animal from being present in certain workplaces. If an employee claims to be allergic to another employee’s assistive animal, you may have two employees to accommodate — the employee requiring the assistive animal and the employee with the allergy. You can work with both employees to figure out how to best accommodate everyone involved, such as providing the employees with fans or air filters. If allowing an animal to be present at work may violate other laws, such as health and safety requirements, you can take that into account when determining whether the requested accommodation is reasonable or whether it would impose an undue hardship.
When in doubt, always consult legal counsel.
How Should a Business Handle a Customer with a Service Animal?
In addition to any worker’s right to an assistive animal, businesses that are open to the public must allow individuals with disabilities to bring a service animal with them into the establishment. These requirements can be found in the federal ADA, California’s Unruh Civil Rights Act and the state’s Disabled Persons Act.
You cannot refuse to provide service or access to a disabled customer because of a service animal’s presence. If you prohibit animals in your business, you must make an exception for service animals. Certain individuals who are training service animals must also be allowed to bring those animals in.
Should a customer with a service animal enter your business and the need for the animal is not obvious, you are limited to asking the customer the following two questions to confirm that the animal qualifies as a service animal:
- Is the animal required because of a disability?
- What work or task has the animal been trained to perform?
If the need for the service animal is obvious, such as a guide dog leading a blind person, then you should not ask either of these questions.
You cannot ask the customer about the nature of his/her disability, or require any documentation, such as proof that the animal is trained. Do not ask the customer to have the animal demonstrate the task it is trained to perform.
In a recent California Court of Appeal case, a business was sued after a customer claimed he was denied access to the company’s business because of his service animal’s presence (Miller v. Fortune Commercial Corporation, 15 Cal.App.5th 214 (2017)). The company filed a motion asking the court to dismiss the case before trial on the grounds that the customer’s dog was not a trained service animal, the dog was not brought into the stores for the purpose of being trained, and even if it had been, the people handling the dog were not qualified to train the dog.
The court agreed and dismissed the case. The customer appealed, and the decision was affirmed. As discussed above, the ADA requires that service animals be trained. The court found that while the dog had received some general obedience training, it was not trained as a service animal. Since the dog was not trained as a service animal, the customer had no right to bring the dog into the businesses.
- A request from an employee to bring an assistive animal into the workplace should be treated just like any other request for accommodation: Once the employee requests an accommodation or you receive notice that an employee has a disability that may need an accommodation, engage in a timely, good-faith interactive process with the employee to determine if use of the animal would be a reasonable accommodation.
- You cannot bar customers from entering your business if they have a service animal. Any signs that state “no animals” should indicate that service animals are allowed.
- Assistive and service animals are not pets. They are working animals; their job is to assist their owners. Employees should not pet or engage with an assistive or service animal without first asking permission of the animal’s owner.
- There are organizations that will, for a fee, allow individuals to certify or register an animal as a service or assistive animal. Some even sell vests, tags or other items for the animal to wear. Such a certification or tag alone, however, does not give an employee or customer the right to have the animal with them in your workplace or business.
- In the case of an employee, the animal must meet the definition of an assistive animal and be necessary as a reasonable accommodation for the employee’s disability.
- In the case of a customer, only a service animal must be allowed in your business. If the need for the animal is not obvious, you can ask the two questions identified above to confirm whether the animal qualifies as a service animal.