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Living with a disability is hard.  Working with one is even harder.  When work becomes impossible due to a disability, California workers have the right to request reasonable accommodation from their employers.  One form of accommodation that has grown increasingly popular over the years is the emotional support animal.  That’s right, California workers can bring an emotional support dog, cat, or other animal to provide emotional support for a disability that otherwise prevents them from completing work.  But, what exactly is an emotional support animal?  How does a California worker request accommodation to bring one to work?  And, what if the employer refuses on unreasonable grounds?  Continue reading for more information about emotional support animals in the California workplace.

Emotional Support Animal vs. Service Animal

State and federal law allow workers to bring assistive animals to work.  Assistive animals include guide animals, signal dogs, and emotional support animals. Service animals have been around for decades.  These animals have been trained to provide assistance to work or perform tasks for a disabled person.  California Civil Code § 54.1.  These animals include: Individuals with disabilities that do not require a service animal may still be entitled to legal protection and can bring an animal to work.  Under both federal and California law, which seek to prohibit discrimination in employment, a worker can bring an emotional support animal to work as an accommodation for a disability.  Emotional support animals provide emotional, cognitive, or other similar support to a person with a disability, including traumatic brain injuries or mental disabilities, such as major depression.  2 Cal. Code Regs. § 11065.  However, unlike service animals, emotional support animals are not trained to perform tasks relating to a disability. As stated above, a service animal must be specifically trained to perform at least one specific task to qualify as an assistive animal, while emotional support animals do not require any particular training.  For example, an English Bulldog that is not trained to perform any specific task and only provides comfort to its disabled owner is an emotional support animal.  The dog is not a service animal because it possess no training to assist the owner.  On the contrary, a Golden Retriever trained to respond to an owner’s epileptic seizures is a service animal.

What Rights Do California Workers Have Regarding Emotional Support Animals in the Workplace?

Under the FEHA and ADA, California workers have the right to reasonable accommodation for a disability.  An emotional support animal may constitute a reasonable accommodation.  2 Cal. Code Regs. § 11065(a)(3); (p)(2)(B).  This means California workers have the right to request bringing a properly certified emotional support animal, such as a dog or cat, to work with them.  The U.S. Department of Housing & Urban Development issued an Official Notice (FHEO-2013-01) stating that, “(b)reed, size, and weight limitations may not be applied to an assistance animal.”

How Do California Workers Request Accommodation to Bring Their Emotional Support Animal to Work

Preferably in writing, a request to bring an emotional support animal to work need only contain two things:
  1. That the California worker is disabled; and,
  2. They require an emotional support animal at work as a reasonable accommodation to perform their job functions.
Typically, the California worker may write a letter containing this information.  They may also attach a note from a health care professional, such as their primary care physician, a counselor, or a therapist.  The health care professional note must state that the worker is under their care, is disabled, and requires an emotional support animal at work as a reasonable accommodation.  A well-written letter also includes a brief explanation as to why the worker requires the presence of the emotional support animal at work.  Significantly, neither the California worker nor the health care professional is required to disclose the worker’s disability or provide detailed medical history when requesting an emotional support animal as a reasonable accommodation.

How Must A California Employer Handle A Request to Bring An Emotional Service Animal to Work

The employer cannot simply say no in response to a California worker’s request to bring their emotional support animal to work.  Under the FEHA, California employers must engage in an interactive process with the disabled worker that asks to bring an emotional support animal to work.  The interactive process consists of the California worker and the employer exchanging ideas about what accommodation would make it possible for the worker to do their job.  The solution must be particularized to the job, worker, and their disability.  The California employer must approach the discussion in good faith and work with the worker to find and ultimately provide a reasonable accommodation. California employers may either grant the request for an emotional support animal as an accommodation, grant the request upon the worker meeting certain conditions, or engage in the interactive process to determine whether an alternative reasonable accommodation exists.

Requirements Employers Can Put on Emotional Support Animals

Before granting permission allowing the California worker to bring in the emotional support animal, the employer may request the following:

Employers Must Perform an Individual Assessment

When considering whether to grant the request for an emotional support animal as a reasonable accommodation, the employer must perform an individual assessment that considers the work environment, the type of business they engage in, and the worker’s position.  The employer should consider whether the accommodation will effectively allow the employee to perform the essential functions of their job?  Also, the employer should consider whether allowing the worker to bring the emotional support animal to work will cause an undue hardship on the company, department, or other workers?  The law defines an undue hardship as an action requiring significant difficulty or expense incurred by an employer when considered under the totality of the circumstances.  An example of an undue hardship would be the elimination of an entire workstation to accommodate a makeshift stable for an emotional support miniature horse.  A more common example of an undue hardship is whether the presence of the emotional support animal triggers another worker’s fear and anxiety, or allergies, which the employer cannot easily mitigate.  Here, the employer will be looking to see the emotional support animal's effect on the workplace.

Does the Presence of an Emotional Support Animal Violate A Workplace’s “No Pets” Policy?

No.  Under FEHA, an emotional support animal is not a pet.  Service Animals and Assistance Animals for Persons with Disabilities in Housing and HUD-Funded Programs, FHEO Notice: FHEO-2013-01 (April 25, 2013), p. 2 (“An assistance animal is not a pet.”)  This means that an employer may not rely on a “No Pets” policy in denying a California worker’s request for an emotional support animal as an accommodation.

How To Handle Common Reasons Employers Refuse to Allow Emotional Support Animals

While engaging in the interactive process, employers may attempt to prevent a California worker from bringing an emotional support animal to work through deceptive or underhanded means.  Engaging in the interactive process gives the employer the veneer of complying with the law, even though they never intend to grant the worker their accommodation request for an emotional support animal.  Here, the employer may stand behind frivolous reasons for denying the request.  If the worker refutes the reason, or proposes a tenable solution, they should successfully secure approval to bring their emotional support animal to work.  The following are a sampling of supposed accommodation denials that can become, should the employer ultimately refuse to allow the worker to bring their emotional support animal to work, instances disability discrimination.
Reason for ESA Denial Solution
The emotional support animal is too loud. The California worker can propose a solution that reduces the alleged noise, such as a humane bark collar or completing an animal training class focused on noise reduction.
A coworker is allergic to the emotional support animal. The California worker can propose relocating to another part of the building, use HEPA air filters, or verify that the emotional support animal is the true source of the coworker’s allergies.
The emotional support animal creates an allegedly indecent odor or offensive to the senses. Verify that the offensive odor is from some other source. If true, prove that the emotional support animal is clean, bathed regularly, and odorless.
The emotional support animal is a dangerous breed. An emotional support animal may be any breed, size, or weight, and is not subject to employer limitation.  FHEO-20123-01.

What Happens Where California Employers Refuse, Without Good Reason, to Allow An Emotional Support Animal At Work?

Where a California employer refuses to allow a worker with a disability the right to an emotional support animal at work as accommodation, the worker has several options.  In addition, the employer has several options where the employer fails to engage in the interactive process regarding the worker’s request, engages in bad faith, or wrongfully denies the request.  Initially, the worker can file a written complaint with Human Resources.  The worker can also file an administrative complaint with the EEOC or DFEH.  Finally, the worker may also consider filing a lawsuit in court. Before taking action, a California worker denied an accommodation requesting to allow their emotional support animal at work should contact an experienced attorney for more information.