Service Animals and the Law: Understanding Disability Management

1. Service Animals and the LawDisability Management Employer Coalition (DMEC) October 2015 Chapter Meeting | October 14, 2015 Presented By: Heather DeBlanc

2. What is a service animal? Generally – An animal that is trained to perform a task or tasks for a person with a disability for the purposes of helping the person overcome limitations resulting from his or her disability

3. What tasks do service animals perform? • Traditionally – Guided people with vision impairments • Today – Provide various services, such as: • Alerting the hearing impaired • Pulling a wheelchair • Assisting during a seizure • Alerting to the presence of allergens • Retrieving items such as medicine or the telephone • Providing or supporting physical balance and stability • Helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors

4. Laws Relating to Service Animals Federal and California law both prohibit employers from discriminating on the basis of a disability: • Federal: Americans with Disabilities Act (ADA) • Employment provisions typically apply to employers with 15 or more employees (42 U.S.C. § 12111(5)(A)) • California: Fair Employment and Housing Act (FEHA) • Employment provisions typically apply to employers with five or more employees (Gov. Code, § 12926(d))

5. ADA – Generally The ADA prohibits discrimination against persons with disabilities primarily in public accommodations and employment

6. ADA – “Service Animal” The ADA defines a service animal as “any dog that is 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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. . . .” (emphasis added) (28 C.F.R. § 36.104)

7. ADA – Reasonable Accommodation • An employer may be required to permit an employee to bring his or her service animal to work as part of a “reasonable accommodation” for a disability • An employer may request reasonable documentation that the employee has an ADA-covered disability and needs a service animal as a reasonable accommodation (EEOC Reasonable Accommodation Guidance )

8. ADA – Other Animals • Although the ADA definition of “service animal” is limited to dogs (and miniature horses), this definition primarily applies to taking a service animal into public areas • Service animals are not expressly mentioned in the employment provisions of the ADA, so it is possible that other types of animals would need to be permitted as a reasonable accommodation

9. ADA – Undue Hardship • An employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business (42 U.S.C. § 12112 (b)(5)(A)) • "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to: the size, resources, nature, and structure of the employer's operation, among other things (29 C.F.R. § 1630.2(p)(1))

10. ADA – Inquiries • In the public accommodation context (non-employment), the ADA provides that a public entity may not ask about the nature or extent of a person's disability. • A public entity also may not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. (28 C.F.R. 36.302(c)(6).)

11. ADA – Inquiries However, to determine whether an animal qualifies as a service animal, a public entity may ask: • If the animal is required because of a disability, and • What work or task the animal has been trained to perform (28 C.F.R. 36.302(c)(6).)

12. ADA – Removal of Service Animal • Also in the public accommodation context, the public entity may ask an individual with a disability to remove a service animal from the premises if: • The animal is out of control and the animal's handler does not take effective action to control it; or • The animal is not housebroken (28 C.F.R. 36.302(c)(2).)

13. ADA – Case Study EEOC v. Americall Group Inc.(N.D. Ill. Dec. 1, 2005) • The Equal Employment Opportunity Commission (EEOC) reached a $200,000 settlement agreement with a Chicago telemarketing firm that rejected a qualified blind applicant on the basis that it could not accommodate her guide dog. According to the EEOC attorney, had the case gone to trial, the EEOC was prepared to present an expert on guide dogs who had inspected the call center and found it to be suitable for use by a blind worker together with a guide dog.

14. FEHA – Generally The FEHA prohibits harassment and discrimination in employment and housing on several protected grounds, including disability (Gov. Code, § 12940(a))

15. FEHA – Reasonable Accommodations Under the FEHA: “It is an unlawful employment practice, unless based upon a bona fide occupational qualification . . . [f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940(n))

16. FEHA – Assistive Animal • FEHA Regulations provide, as an example of a reasonable accommodation, allowing applicants or employees to bring “assistive animals” to the work site (2 C.C.R. § 11065(p)(2)(B)) • “Assistive animal” means “a trained animal, including a trained dog, necessary as a reasonable accommodation for a person with a disability” (emphasis added) (2 C.C.R. § 11065(a))

17. FEHA – Minimum Standards • Employers may set minimum standards for assistive animals, such as requiring that the animal: • Be free from offensive odors and display habits appropriate to the work environment • Not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace; and • Be trained to provide assistance for the employee’s disability. (2 C.C.R. § 11065(a)(2))

18. FEHA – The Interactive Process If an employee asks to bring an assistive animal into the workplace as a reasonable accommodation, the employer may require the employee to: • Provide a letter from the employee’s “health care provider” stating that the employee has a disability and explaining why the presence of the animal in the workplace is required • Supply confirmation that the animal meets the employer’s minimum standards (2 C.C.R. § 11069(e))

19. FEHA – Undue Hardship • Like the ADA, the FEHA provides that an employer need not provide an accommodation that would impose an “undue hardship” on the employer (2 C.C.R. § 11068(a)) • “Undue hardship” is defined under the FEHA very similarly to its definition under the ADA (See 2 C.C.R. § 11065(r))

20. Disabled Persons Act The California Disabled Persons Act (DPA) prohibits discrimination, in terms of access to public places and housing, against individuals requiring: • A guide dog (for those who are blind or visually impaired); • A signal dog (for those who are deaf or hearing impaired); or • A service dog (for those with physical disabilities (Civ. Code §§ 54.1 et seq.)

21. Disabled Persons Act - Fees The DPA also provides that individuals requiring such dogs cannot be required to pay an extra charge or security deposit for the dog. (Civ. Code § 54)

22. Disabled Persons Act - Lying “Any person who knowingly and fraudulently represents himself or herself, through verbal or written notice, to be the owner or trainer of any . . . guide, signal, or service dog . . . shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both that fine and imprisonment.” (Pen. Code, § 365.7(a))

23. Emotional Support Animals Emotional support animals can be described as animals that provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities

24. Emotional Support Animals • Neither the ADA nor the FEHA define or discuss “emotional support animals” in the employment context • However, since both laws require an employer to provide reasonable accommodations to an employee with a qualifying disability, an employer may need to permit an employee to have an emotional support animal at work as a reasonable accommodation

25. Other Employees Accommodating one employee may present issues for other employees or workplace visitors/patrons • Allergies • Fear of animals

26. Liability • Who is responsible if the animal causes harm? • ADA: ? • FEHA: ? • DPA: ?

27. Questions? Heather DeBlanc Partner | Los Angeles 310.981.2000 | hdeblanc@lcwlegal.com www.lcwlegal.com/Heather-DeBlanc