This week’s question comes from Brian T. who asks:
Q: I work in an office with a pretty liberal policy on pets in the workplace. Unfortunately, while I love animals, I am allergic to certain types of long haired dogs and cats. A colleague of mine who has a physical disability brings his service dog to work every day to help him find his way around the office. The dog is very cute, but I often have an allergic reaction when I have to interact with this colleague or walk past his office. While I want to be sensitive and respectful of my employees’ needs, I also need to be able to work without serious allergic reactions. What are my options?
A: Thanks for your question, Brian. You have a number of legitimate concerns, and California and state law requires your employer to negotiate these carefully. The first thing to note is that your employee is using a service animal rather than an emotional support animal. Under the American With Disabilities Act (ADA), a service animal is a dog that has been individually trained to perform duties for a person with a disability. Federal law, on the other hand, defines an “emotional support animal” by exclusion: as any animal that is used to support, assist, or provide services to a person with disabilities but which does not meet the stricter definition of a service animal.
Both the ADA and the California Fair Employment and Housing Act (FEHA) prohibit discrimination based on disability in employment and housing matters. As part of their anti-discrimination requirements, both the FEHA and ADA require employers to make reasonable accommodation of skilled workers with disabilities to enable them to perform the essential functions of their jobs, provided that there is no undue hardship on the employer. Both laws see it as a reasonable precaution to bring a service animal to work in appropriate circumstances.
In the case of your colleague, it sounds like he is using a service animal because his work requires him to get up and move around the office and his own physical limitations make it difficult to do so. As such, it is likely that a legal requirement that your employer allow him to use a service animal in the office as reasonable accommodation to encourage his mobility unless the animal presents undue hardship at work.
However, adding your allergy concerns into the mix makes things more complicated. A serious allergy that prevents or hinders you from performing the essential functions of your job is also a legitimate concern and can potentially be classified as a disability that deserves reasonable accommodation. As such, your employer will likely have to do a balancing act to ensure that all employees with disabilities are treated fairly by law.
The law requires that your employer conduct a good faith interactive process with you and your colleague in order to arrive at a lawful solution that works for both parties. This likely requires some creativity and flexibility. The specific arrangements that will be discussed during the interactive process will depend on the severity of your allergies, the extent of your employee’s need for the specific housing of a service animal, and the unique environment in which you both work.
One solution could be to avoid face-to-face contact between you and the service animal by simply moving your work area to the opposite side of the office and having separate bathrooms and common areas used. If physical separation from your coworker would result in undue exposure, as can be the case in a small office setting, your employer should still make reasonable efforts to minimize your exposure. This can mean adapting any of your work schedules, temporarily removing the service animal at any time if you and your co-worker need to attend meetings together, allowing one or both of them to work remotely, and / or wearing protective equipment such as an allergen mask.
If your allergies are severe enough that even working in the same environment as the service animal poses serious health risks to you, speak to your employer about these concerns immediately. To ensure that your legal rights are fully protected, you should consult a labor lawyer, e.g. E.g. to the PC of the law firm Dolan to find your way around the situation.
Christopher B. Dolan is the owner of the Dolan law firm. Email questions and topics for future articles to [email protected].
We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland and Los Angeles. Our work is not a clawback, a fee or is also referred to as a contingent liability. That means we don’t charge a fee unless we receive money for your damages and injuries.
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