Service and emotional support animal accommodations have become an issue for facilities, especially public ones like shopping malls, restaurants, movie theaters, medical offices, and recreational facilities. Even private facilities may have to address the issue with tenants. With that in mind, we’re providing facilities managers an analysis of the Americans with Disabilities Act (ADA) public accommodation requirements for service animals, including general guidance for properly evaluating an individual’s use of the animals in or on the business premises, as well as issues of accommodation for emotional support animals.
Title III of the ADA prohibits disability discrimination in places of public accommodation, which include facilities that are open to the public. As a result, the entities are required to modify any practices, procedures, and policies that infringe on disabled individuals’ rights in certain circumstances.
Service Animals under the ADA
The ADA limits the definition of “service animals” to dogs that are individually trained to work or perform tasks for a person with a disability. The law’s regulatory provisions explain that miniature horses also must be similarly accommodated in certain circumstances. Typical tasks performed by service animals may include but are not limited to:
- Guiding visually impaired individuals;
- Pulling a wheelchair;
- Alerting people who are deaf;
- Calming individuals with posttraumatic stress disorder during anxiety attacks;
- Alerting and protecting a person who is having a seizure; and/or
- Reminding a person with mental illness to take prescribed medication.
If an individual requires a trained service animal to perform certain tasks, businesses are required to permit the animal to accompany the disabled individual anywhere other members of the public are permitted, with limited exceptions. That obligation remains even if state or local health codes prohibit animals on the premises for various reasons.
ADA and Emotional Support Animals
Most important, however, the ADA does not recognize emotional support, well-being, comfort, companionship, or guarding as recognized tasks that protect an individual’s right to enter a place of public accommodation with an animal. As a result, emotional support animals, including therapy dogs or comfort animals, do not qualify as service animals under the Act—even if the individual possesses a doctor’s note attesting to the person’s disability need.
In other words, while service animals must be allowed access to a business’ premises, the ADA does not require accommodation of emotional support animals (or other types of pets), and businesses may refuse nonservice animals access to their premises.
Handler Responsibilities
While the ADA mandates accommodation for service animals, it also requires the disabled individual (handler) to control the animal while on the business premises. That control essentially requires the handler to harness, leash, or tether the animal. It also requires the handler to clean up after the animal and promptly correct disturbances the animal may cause while on the premises. The handler is also solely responsible for providing care to the animal and must ensure it is housebroken.
Accommodating Others
The ADA does not recognize the accommodation of other individuals’ allergies or fear of dogs as a valid reason for denying a service animal access to the business premises. Further, businesses are prohibited from isolating disabled individuals with service animals from other patrons and may not treat the individuals less favorably than others. Likewise, businesses may not levy a surcharge on disabled individuals for allowing the service animal’s access to the premises.
Evaluating the Animal
One of the most difficult issues connected to service animals involves determining whether an accommodation is required. Most important, the ADA restricts the type of information a business may seek in order to determine whether it must permit the service animal to have access to its premises.
Businesses should never ask for, inquire about, or require (1) documentation of the individual’s disability, (2) certification, training, or licensure documentation for the animal, or (3) a demonstration of the animal’s ability to perform the task required by the individual. Doing so violates the ADA.
Service and/or Emotional Support Animals for Employees
Different considerations may apply if a service animal or emotional support animal accommodation request is made by an employee (as opposed to the public). Fact-specific determinations must be made over whether the employee is a qualified individual with a disability and can be reasonably accommodated by allowing a service or emotional support animal to accompany him at work without imposing an undue hardship on the business.
Other Laws May Offer Protections, Create Obligations
Federal, state, and local laws may provide additional protections or create obligations for businesses and/or disabled individuals relating to the accommodation of service and emotional support animals.
Air Carrier Access Act (ACAA). The ACAA is a federal law that prohibits commercial airlines from discriminating against passengers with disabilities. In certain circumstances, airlines must allow service animals, including emotional support animals, to accompany disabled individuals on an aircraft.
Under the ACAA, a “service animal” is any animal that is individually trained or able to provide assistance to a person with a disability or that assists persons with disabilities by providing emotional support. A wide variety of animals are permitted in the cabins of aircraft flying to and within the United States, but airlines may prohibit animals that:
- Are too large or heavy to be accommodated in the cabin;
- Pose a direct threat to others’ health or safety;
- Cause a significant disruption of cabin service; or
- Are prohibited from entering a foreign country.
Further, airlines are never required to accept snakes, reptiles, ferrets, rodents, sugar gliders, or spiders. Generally, a single cat or dog is allowed.
Earlier this year, a passenger who purchased a plane ticket from New York to California for her emotional support peacock was prohibited from allowing it to board the plane. And more recently, a woman was prohibited from allowing her emotional support squirrel, a rodent, to ride in the cabin during a plane trip from Florida to Ohio.
Unlike the ADA, the ACAA permits airlines to ask more probing questions surrounding a passenger’s need for a service animal. It also permits them to require passengers to provide documentation from a licensed health care professional justifying the need for an emotional support animal before allowing it to fly.
Bottom Line
The ADA sets forth relatively clear rules and procedures for when and how a business must accommodate a disabled individual’s service animal. If a business isn’t covered by applicable federal, state, or local laws, however, the decision to accommodate emotional support animals is left up to each company. Some may choose to exclude the animals. Others may decide to accommodate customers to some degree. Your business should evaluate to what degree you’re willing to accommodate emotional support animals and establish guidelines for implementing a consistent approach.
| Destiny Washington is a Senior Associate at FordHarrison LLP and contributes to the Georgia Employment Law Letter. She can be reached at dwashington@fordharrison.com.
Rick Warren is a Partner at FordHarrison LLP and contributes to the Georgia Employment Law Letter. He can be reached at rwarren@fordharrison.com. David Anderson is an Associate at FordHarrison LLP and contributes to the Georgia Employment Law Letter. He can be reached at danderson@fordharrison.com. |