Corporate America is a dog-eat-dog world – literally. New regulations from the California Department of Fair Employment & Housing (DFEH) entitle an employee to request an “assistive animal” as a reasonable accommodation of a physical or mental disability. The regulations define “assistive animal” so broadly that all kinds of critters might be able to claw their way into the workplace. That’s the cat’s pajamas for an employee or job applicant who needs a furry friend to help him cope with post-traumatic stress disorder (PTSD) or some other mental disability. But anyone who wants to bring an assistive animal is a sitting duck unless he knows the new regulations. Here’s a bird’s eye view of the new regulations.
I. Move Over, Rover: Monkey Helpers, Guide Horses, and Other Assistive Animals Are on the Way
The new DFEH regulations define the term “assistive animal” expansively: “a trained animal, including a trained dog, necessary as a reasonable accommodation for a person with a disability.”1 Specific examples of an “assistive animal” include, but are not limited to, the following: (1) a guide dog trained to guide a blind or visually impaired person; (2) a signal dog or “other animal” trained to alert a deaf or hearing-impaired person to sounds; (3) a service dog or “other animal” individually trained to the requirements of a person with a disability; and (4) a support dog or “other animal” that provides “emotional or other support” to a person with a disability, including, but not limited to, traumatic brain injuries or mental disabilities (e.g., major depression).2
The “assistive animal” regulations are sure to send a lot of employers to the funny farm. The regulations indicate that an assistive animal can be any trained animal. That means some employees will soon be into monkey business – literally. The non-profit group Helping Hands trains Capuchin monkeys (the ones who play the organ grinder) to help those with spinal cord injuries and other mobility impairments by fetching, hitting the lights, and opening bottles. These monkeys stand only 12 to 22 inches tall and weigh only six to eight pounds – smaller than a service dog. The American Veterinary Association opposes the use of non-human primates as service animals because, among other things, they might spread diseases. But the law is the law.
Monkeys are far from the only animals that can replace dogs as assistive animals. The Guide Horse Foundation trains miniature horses to perform the tasks of guide dogs. Guide horses are a good alternative to guide dogs because the former are usually non-allergenic, less aggressive and prone to panic, and capable of working and living longer. But the regulations appear to rule out any animal other than a dog becoming a guide. The regulations cite a “‘guide’ dog…trained to guide a blind or visually impaired person” as a “specific example” of an assistive animal. Notably, a “guide dog” is the only “specific example” that doesn’t contemplate the use of any “other animal” in place of a dog. But an example is just that – an example.
II. 101 Dalmatians? Limits on “Offensive” and “Disruptive” Assistive Animals at Work
None of this means an employer must let lions, tigers, and bears roam the workplace. Even if an employee is a combat veteran with PTSD and relies on a service dog for emotional support at the recommendation of a psychiatrist, his employer may require that the dog meet certain “minimum standards”: that it’s free from “offensive odors” and display habits appropriate to the work environment (e.g., it can “eliminate” urine and feces); that it doesn’t engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace; and that it’s trained to provide assistance for the employee’s disability.3 So if an elephant really is in the room, don’t expect to keep your job much longer.
Not all is lost for an employee who wishes to bring a non-traditional assistive animal to work. His employer may object to the presence of an assistive animal in the workplace if the animal does not meet the “minimum standards.”4 The employer must base his challenge on objective evidence that the assistive animal’s behavior is “offensive” or “disruptive.”5 But the employer better hop to it. If he doesn’t object to the animal within the first two weeks of its arrival in the workplace, he waives the objection. The employer may annually require the employee to obtain “recertification” of his continued need for the animal, but the regulations aren’t clear if the employer can revive an objection after the employee obtains recertification.
III. Perfecting Your Right to Bring an Assistive Animal to Work
Employees who want to bring assistive animals to work need not get ants in their pants about what to do next. If an employee wants to bring an assistive animal to work as a reasonable accommodation of a disability, he must ask his employer for permission.6 But making the request is remarkably easy. The employee can make the request orally or in writing. The employer may require that the employee provide: (1) a letter from his “health care provider” stating he has a disability and explaining why he requires an assistive animal in the workplace (e.g., why the animal is necessary as an accommodation to allow the employee to perform the essential functions of the job); and (2) confirmation that the animal meets the “minimum standards.”7
Getting a letter from a health care provider is also a breeze. The “assistive animal” regulations define a “health care provider” to include a marriage and family therapist, podiatrist, dentist, clinical psychologist, optometrist, chiropractor, nurse practitioner, nurse midwife, clinical social worker, physician assistant, and even an acupuncturist.8 That means even the nurse practitioner at the local CVS Minute Clinic can prescribe a penguin to an employee with a disability if she feels the animal would meet the employee’s “needs.” Meanwhile, confirmation of the animal’s ability to meet the “minimum standards” is even easier to obtain. The confirmation can even “include” information from the employee himself.9