Episode 35: From Clowns to Pigs: Dealing with Unconventional Requests in the Workplace

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president and general Counsel. Joining us on the podcast today is Jennifer Shah of the Shah Law Group. As you listeners know, Jennifer is a regular guest here on the podcast, and we are so happy to have her back.

I'm thrilled to be here. Thank you.

Oh, and Jen, we have such an awesome topic today.

Yes, we do.

Well, it's Halloween time, right? There's pumpkins everywhere, spooky witches all over the place. Right. Our minds go to costume and dressing up. You know, who's coming to work in the cocktail dress or the French maid.

Uniform is always my favorite. Yes.

So, okay, so Halloween time, of course. You know, I love to read about unique stories involving the workplace. The one that I read recently that caught my eye that I thought would be awesome for today is an emotional support clown in the workplace.

Yeah. So the fascinating thing about that, before we even get into the law, is nobody likes clowns. We all know this. Okay? So how a clown would emotionally support you is beyond my realm of understanding, but that's not a legal issue.

Okay. So let me just, you know, lay the groundwork for those listeners out there who are like, what are these ladies talking about? Have they had way too much sugar? Okay, so a man in New Zealand was called in to a work meeting and feared the worst. He thought, I'm done, right? Yep. Losing my job. So we hired an emotional support clown to join him and spent, like 200 bucks to do this. Right. According to the employee, having a clown along for the ride definitely lightened the mood.

It must be the red nose, Right?

Or the fact that the clown was making caricatures and little animals with balloons.

Good. Okay.

By the time the meeting was over and the meeting was a meeting to terminate this employee, the employee didn't have a job, but he did have two balloon animals. A unicorn and a poodle.

How apropos.

So in reading this article, the gentleman had a sense that he was going to be terminated. So that obviously stirs some stress and concern and thought that this emotional support clown would help brighten the mood, which it sounds like it did. But it begs the question, can employees bring support clowns into the workplace?

I have to tell you, this is an area that I am receiving calls about at least three days a week. So there's a difference, of course, between a service animal. So an ernable. So we have an animal that is trained to actually do something. Like, I have an animal from Canine Companions. The dog is trained to Notify me when I'm about to have a seizure. Employers have to accommodate that sort of an accommodation. Right, Right. So we make sure. Is the dog trained? Can the dog do what the dog is supposed to do? Is the dog going to cause a problem? Is the dog potty trained? Is the dog going to bite anyone? Who. Those are all very reasonable questions. And you have a lot more leeway when you're dealing with it as an accommodation. Right. The emotional support animal is also an accommodation, but there are no requirements that the snake you bring in has to be trained or the pig you want to sit on your lap has to not stink, or the clown you bring in is actually going to solve the problem that you're having. So what employers really have to think about is, okay, first of all, my one rule on all accommodations, treat the employee like they are your favorite. Okay? So what would you do for your most favorite, hardest working, always coming to work, most fabulous employee? They say, hey, I've got a pet pig. Her name is Penny. I have her in a nice little box. She won't bother anybody. And she really calms me down during, particularly the end of the month when all those tough numbers have to be calculated. Great. You know what? If you can put Penny under your desk and make it happen, we don't have a problem. The issue is it never works out that way. Someone's allergic to Penny or Penny's snorting all over the office. And what employers have to understand is this is not the universe of common sense.

So that begs the question, right? So when you talk about canine companions, where they're trained, they're service dogs. They're there to train that employee that might have a seizure. They are trained to be potty trained, not to sniff around, not to snag the sandwich off a cockp. Right. When we start talking about Penny the pig and Bozo the clown, we've got other issues there.

Yes. So one of the things we see a lot is we had a woman who's afraid of snakes. Her co worker brings in a boa, Betsy the boa, to brighten her up. She's a light pink boa with pretty little. It's hard for me to describe a snake as pretty, but pretty little swirls on her. And the co worker, literally, I'm not kidding, has a heart attack. She is so afraid of snakes that she stops breathing. She has a heart attack, which they later diagnosed as an actual, you know, cardiac arrest in the workplace because of the snake.

Are you serious?

I pinky promise. Okay, so now what? Happens now you have a workers comp claim from the lady who had the heart attack. And if you didn't let the Betsy the Boa come in, you could have a failure to accommodate issue. So one of the things that I think is happening is stories like that one scare employers so much that it's basically anything goes. They're basically saying, hey, you want to bring the clown to your termination meeting? No problem. Bring the clown. And they're not realizing that they really should be drawing some lines.

So now, Jen, what does the law require? Because I know that there are some parameters, right, that it's not really completely up to the employer's discretion as to what they consider to be a support animal. And what the law requires.

Well, in fact, it's very little is up to the employer's discretion. It's what the employee thinks will solve the problem. And they get a note from the doctor saying, Betsy the boa or Penny the pig is really going to calm Jennifer down. She has uncontrollable anxiety. She has a lot of issues with anger. So we need to work on this, and the boa and the pig are going to help her with that. And the only thing you can do, and this is the mistake employers make on these accommodations. Whether it's an animal or time off or a piece of equipment, you have three factors to look at. Number one, is it medically necessary? Well, that's pretty easy. The doctor will give you that for the price of a copay. Number two, you have an issue of is it going to be effective to allow the person to do the job? Well, if I have to constantly pet Betsy the Boa, then I'm not going to be doing my job. So that may not be an effective support animal. Number three, does it impose an undue hardship? And here, unlike other situations with undue hardship, we actually have some arguments. Are three people allergic to dogs? Therefore, you can't bring the fluffy old English sheepdog into the workplace as an accommodation. It allows you a little bit of room to maneuver. But as usual, the best element for employers to focus on is effectiveness.

Okay, Jennifer, so we're saying that employers don't have a lot of discretion in the workplace. How do. How does our. How do our listeners reconcile the fact that the airlines, for example, told the woman who brought her pet squirrel on the plane, so sorry, we're not flying with you having your emot port squirrel. Why can an airline say no way, but an employer can't?

So you're thinking way too logically, right? Because of course, the Problem is, we have workplace laws about what we need to do to accommodate someone which are much, much looser than the accommodation rules in places of public accommodation. So an airplane is a place of public accommodation which is covered by a different title than we're dealing with the title for the workplace under the Americans with Disabilities act and the Fair Employment and hous. There is no question that the employer's obligation is higher in the workplace.

Okay, so that solves that problem.

And by the way, the flight attendant cannot bring the emotional support squirrel either because she cannot deliver her drinks and her warm nuts or her special little sandwiches.

Pretzels.

Pretzels, if you're lucky. While she's playing with Betsy the boa. Or the squirrel.

What about a bird that sits on her shoulder?

Oh, yes, we have a poop issue. Right. No, seriously, we have. I know this is a crazy conversation we're having, but we have an issue with. Okay. People are eating and drinking, and the bird has to do its business.

I'm sorry.

As you all know, never a dull moment on the workplace podcast. There you go. And that makes perfect sense. Why Think about that. Of course. That's why a bird can't sit on the shoulder. Okay, so bringing things back a little bit to seriousness. But it's Halloween time, so that's okay. Anyway, all right, so going back to this workplace accommodation, you talked about another employee maybe being allergic to the pig. Or what about the employee who's scared to death of clowns because Lord knows a lot of people are scared of death. A lot of people are.

Or the lady who actually had a heart attack because of the snake.

Yeah. So we get this question actually a lot on the helpline where we have accommodated an employee who has emotional support dog. Let's just keep it really simple. And the dog behaves. The dog is not disruptive. But we do have maybe a co worker that sits next to them that's highly allergic and having allergic complications. What does the employer do? Because now you have two individuals who arguably are in a protected class of their own. How does an employer. What does an employer do in those situations?

Well, what the employer has to do is treat both employees like they are their favorite employees. Right. So we look at. Could we move them apart? Do they have to be sitting right next to each other? Is there another place where they could do their job? Like in our office, for example? It doesn't matter where the support staff sit. Right. They can sit wherever they want. So we could put one on one side of the office, one on the other. Side of the office, there's separate doors. You do what you can. If you literally cannot deal with it, you tell the person who wants to bring the dog, they can't bring the dog.

So, Jen, like, seriously, this question comes to mind, though. What person do you move? What if I love both? People love being where they are, and they feel like you're treating them differently than the other and claim somehow that you are making an adverse employment decision towards them.

So this is a tricky one because both of them are entitled to an accommodation. I know this sounds ridiculous. You might draw straws. You might flip a coin. I'm not even joking.

Okay.

No, because you want to do something objective, or you might say, hey, if you're willing to move, I'll give you the cubicle with the window.

Okay?

Like, try to sweeten a little bit. But you're just trying to compromise. That's all you're trying to do is, look, we understand you need the dog. Unfortunately, Jen's really allergic. We can't have you sitting next to each other. Let's get in a room. Let's talk about what ideas you guys have.

Okay?

You're both really important to us. We want to work this out.

Seems logical, right?

It's logical to a point. Although when I tell a client this, and I don't blame them, they say, okay, I'm a little too busy to be going down this road. And I completely get that. But unfortunately, when we're talking about accommodations, accommodations are not only a back brace or a footstool.

Right?

Right. I mean, we're getting complicated. A much more broad universe of what is considered a reasonable accommodation.

Now, Jennifer, I know you had mentioned at some point it may not be effective, and we don't provide legal advice on this podcast. And I want to make sure that our listeners are aware that it's not a decision that an employer should make without the advice and counsel as to what is effective or, you know, this person now can't bring the dog because we can't agree on workspaces. That's not something that they should. That's not a decision that they should make in isolation.

No, they really shouldn't. And I hate for this to sound like, you know, full employment for lawyers, but there are some issues that you should get advice on, and one of them is reasonable accommodations. Because, believe it or not, even after MeToo is the number one claim that is filed with the Department of Fair Employment and Housing and the eeoc, largest jury verdicts we're seeing are failure to accommodate, failure to provide a reasonable accommodation. So, you know, I think if employers start with the idea that these are my favorite employees and then they do what they can and they never want to be the one to end that interactive process. Right, right. Sit down with me. Tell me what you want. Why will this work? Why will that network? Let's talk about it.

And they can involve the employees physician as well.

Well, they have to, because remember, that first step is going to be that medical documentation.

Okay, well, wow. From clowns to medical documentation. That's right. Never a dull moment here.

We all deliver on this podcast.

We always do. We do. We do. Well, I think it's about time to go hit all the trick or treaters out there and enjoy some of the candy as well. So thank you again, Jennifer, for joining us.

I had a great time. Thanks so much.

And thanks to all of you for joining us at the workplace. Please comment, share and subscribe to Cal Chambers podcast at calchamber. Com.