ADA Service Animal Compared with FEHA “Comfort/ Emotional Support” Animal for Staff (K-12)

Our office regularly receives questions regarding an employee requesting to have a service dog and/or an “emotional support/comfort” dog accompany the employee within the workplace. The purpose of this Legal Update is to provide guidance on this issue for employees. For students, the California Fair Employment and Housing Act (“FEHA”) does not apply in the school setting; rather, the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation of 1973 (“Section 504”) applies. Please note that service animals and “emotional support/comfort” dogs are subject to any local dog licensing and registration requirements.

LEGAL UPDATE

September 15, 2016

To:  Superintendents, Member School Districts (K-12)

From: Carl D. Corbin, General Counsel

Subject:  ADA Service Animal Compared with FEHA “Comfort/ Emotional Support” Animal for Staff

Memo No. 32-2016

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Our office regularly receives questions regarding an employee requesting to have a service dog and/or an “emotional support/comfort” dog accompany the employee within the workplace.  The purpose of this Legal Update is to provide guidance on this issue for employees.[1]  For students, the California Fair Employment and Housing Act (“FEHA”) does not apply in the school setting; rather, the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation of 1973 (“Section 504”) applies.[2]  Please note that service animals and “emotional support/comfort” dogs are subject to any local dog licensing and registration requirements.[3]

Service Animal under the ADA

A “service animal” under the ADA is defined as a dog[4] that has been individually trained to do work or perform tasks for an individual with a disability – the task(s) performed by the dog must be directly related to the person’s disability.  “Emotional support, therapy, comfort, or companion” animals are specifically excluded from the definition of a “service animal” and not covered by the ADA.

An employer may ask employees two questions to determine if the dog is a service animal covered by the ADA:

1. Is the dog a service animal required because of a disability? and

2. What work or task has the dog been trained to perform?

An employer should not require the dog to demonstrate its task or inquire about the nature of the employee’s disability.

Please see the following link to a United States Department of Justice document titled “Frequently Asked Questions about Service Animals and the ADA:”

https://www.ada.gov/regs2010/service_animal_qa.pdf

“Emotional Support” Animals under the FEHA

The FEHA defines an “assistance animal” as “an animal that is necessary as a reasonable accommodation for a person with a disability.”[5]  This includes dogs not covered by the ADA that serve the purpose of providing emotional support or comfort to the individual:

A “support animal” may constitute a reasonable accommodation in certain circumstances. A support animal is one 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. As in other contexts, what constitutes a reasonable accommodation requires an individualized analysis reached through the interactive process.[6]

Minimum standards for assistive animals include, but are not limited to, the following and employers may require that an assistive animal in the workplace:

(A) is free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces; and 

(B) does not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace.[7]

 The FEHA defines the interactive process as:

When needed to identify or implement an effective, reasonable accommodation for an employee or applicant with a disability, the FEHA requires a timely, good faith, interactive process between an employer or other covered entity and an applicant, employee, or the individual’s representative, with a known physical or mental disability or medical condition. Both the employer or other covered entity and the applicant, employee or the individual’s representative shall exchange essential information identified below without delay or obstruction of the process.[8]

If an employee requests permission to bring an assistive animal into the workplace as a reasonable accommodation, prior to allowing the animal to be in the workplace, the employer may require that the employee supply:

(1) a letter from the employee’s health care provider stating that the employee has a disability and explaining why the employee requires the presence of the 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 standards set forth in section 11065(a)(2). Such confirmation may include information provided by the individual with a disability. The employer may challenge that the animal meets that standards set forth in section 11065(a)(2) within the first two weeks the assistive animal is in the work place based on objective evidence of offensive or disruptive behavior. An employer may require an annual recertification from the employee of the continued need for the animal.[9]

Please see the following link to a two-page summary on the updated FEHA regulations, which became effective on April 1, 2016, including the revisions regarding support animals:

http://www.dfeh.ca.gov/res/docs/DFEHNews/CAamendedFEHAregsEmployersApril_1_2016_Final.pdf

Lastly, please see the following link to an eight-page DFEH comparison chart that details the differences between the various federal and state laws on service animals:

https://www.dor.ca.gov/DisabilityAccessInfo/DAS-Docs/SERVICE-ANIMAL-LAWS.pdf

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

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