DIVERSITY IN THE WORKS: Public Accommodation of Service Animals and Emotional Support Animals
Executive Summary: Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination in places of public accommodation, which includes businesses (including transit) that are open to the public – like shopping malls, restaurants, movie theaters, medical offices, recreational facilities, airlines, etc. As such, these entities are required to modify practices, procedures, and policies that infringe upon disabled individuals’ rights in certain circumstances. The accommodation of service animals and emotional support animals has become an issue for virtually all businesses – and the media – as an increasing number of individuals rely on service and emotional support animals to accomplish everyday tasks. That is particularly true for individuals traveling by air, where allergies, animal type, and animal size create potential conflicts between animal access and passenger safety. This alert analyzes the ADA public accommodation requirements for service animals, including general guidance for properly evaluating an individual’s use of service animals on or in the business premises as well as issues of accommodation for emotional support animals. It also addresses the Department of Transportation’s final rule governing service animal air travel requirements.
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, although the ADA regulatory provisions also explain that miniature horses must be similarly accommodated in particular 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 Post Traumatic Stress Disorder (PTSD) 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 service 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.
Importantly, the ADA does not recognize emotional support, well-being, comfort, companionship, or guarding as a recognized task protecting an individual’s right to enter a place of public accommodation with an animal. As such, emotional support animals, including therapy dogs or comfort animals, do not qualify as service animals under the ADA – even if an individual provides a note from his or her doctor attesting to the person’s disability need. In other words, while service animals must be allowed access to a business’s premises, the ADA does not require accommodation of emotional support animals (or other types of pets), and businesses may refuse non-service animals access to their premises.
Handler Responsibilities
While the ADA requires accommodation for service animals, it also requires the disabled individual (commonly referred to as “the handler”) to control the animal while on the business premises. That control requires the handler to harness, leash, or tether the animal, unless such devices interfere with the service animal’s work, or if the individual’s disability prevents him or her from using these devices. It also requires the handler to clean up after the animal and to promptly correct disturbances the animal may cause while on the business premises (e.g., excessive barking, growling at other individuals, etc.). The handler is also solely responsible for providing care to the service animal and must ensure it is housebroken. Businesses are not required to provide care or food to, or clean up after, the service animal.
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 disabled individuals with service animals less favorably than others. For example, businesses generally may not limit a disabled individual’s access to certain portions of the business premises because another person is afraid of the animal. Likewise, businesses may not levy a surcharge on disabled individuals for allowing the service animals access to the business premises. In fact, businesses must waive deposits or fees for service animals under the ADA, even if such a fee applies indiscriminately to all patrons.
Evaluating the Animal
One of the most difficult issues connected to service animal access involves determining whether an accommodation is required. Importantly, the ADA restricts the type of information a business may seek in order to determine whether it must permit the service animal access to its business premises. Below is a practical guide for lawfully evaluating that question:
- Determine whether the animal is a dog or miniature horse. If it is not, the business does not have to permit the animal access to the business premises.
- If the animal is a dog or miniature horse, evaluate whether the individual’s need for the service animal is obvious. If the individual’s need is obvious, the animal must be permitted access without further inquiry. For example, a dog assisting a visually impaired person with mobility around the premises must be permitted access without questioning the disabled individual’s need for an animal.
- If the individual’s need for the service animal is not obvious, the business may only ask the following two questions to determine whether the service animal must be permitted:
- Is this animal required because of a disability?
- What task is it trained to perform?
- If the animal is not required because of a disability or is not trained to perform a task for the disabled individual, the business may request that the animal leave the premises. If, however, the service animal is required because of a disability and trained to perform a task, the business must permit the service animal unless it becomes disruptive or a danger to other animals or individuals.
- Importantly, 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.
Additional Considerations
State or local law may provide additional protections or create additional obligations on businesses and/or disabled individuals relating to the accommodation of service animals and emotional support animals. Similarly, certain businesses may be subject to different rules and regulations when considering service and emotional support animals. For example, under the Fair Housing Act (FHA), an individual with a disability may be entitled to keep an emotional support animal in housing facilities that do not allow pets.
Further, different considerations may apply if a service animal or emotional support animal accommodation request is made by an employee, as opposed to an individual seeking access to a public entity. Fact-specific determinations must be made regarding whether the employee is a qualified individual with a disability and whether the employee can be reasonably accommodated by allowing a service animal or emotional support animal to accompany him or her at work without imposing an undue hardship on the business.
Air Carrier Access Act
Effective January 1, 2021, the U.S. Department of Transportation promulgated a new final rule amending the Air Carrier Access Act (the Act), which governs accommodations air carriers must provide to passengers accompanied by service animals on flights. Under prior guidance, air carriers were required to accommodate both service and emotional support animals where, among other considerations, a passenger provided documentation from a licensed health care professional justifying the need for the animal during transit.
Under the new final rule, air carriers are only obligated to accommodate service animals, defined as a dog individually trained to do work or perform tasks for the benefit of a person with a disability (similar under the ADA). In other words, air carriers are no longer required to accommodate emotional support animals on flights (e.g., miniature horses, cats, rabbits, birds, etc.).[1]
Air carriers may also now require from passengers – up to 48 hours in advance of travel – two specific forms attesting to a service animal’s health, behavior, and training, and ability to either (a) not relieve itself or (b) relieve itself in a sanitary manner during long flights.[2] Likewise, air carriers may place obligations on passengers and service animals during transit which include, but are not limited to, requiring that the animal fit in the passenger’s foot space on the aircraft and requiring that the animal be harnessed, leashed, or tethered at all times. As has always been the case, air carriers may refuse transportation to any service animal exhibiting aggressive behavior or otherwise posing a direct threat to the health or safety of others.
Bottom Line
The ADA sets forth relatively bright-line rules and procedures regarding when and how a business must accommodate a disabled individual’s service animal. The Air Carrier Access Act provides similar guidance. However, other than businesses covered by the FHA or applicable state or local law, the decision to accommodate emotional support animals is left up to each business. Some may choose to exclude such animals. Others may decide to accommodate customers to some degree. Accordingly, businesses should evaluate to what degree they are willing to accommodate emotional support animals and establish guidelines for implementing a consistent accommodation approach.
If you have any questions regarding service or emotional support animal accommodations, or other labor or employment issues, please feel free to contact the authors of this Alert, Rick Warren, rwarren@fordharrison.com, a partner in our Atlanta office, or David Anderson, danderson@fordharrison.com, counsel in our Dallas office. Of course, you may also contact the FordHarrison attorney with whom you usually work.
This alert is part of our Diversity Legal Alert Series – Diversity in the Works. Members of FordHarrison’s Diversity and Inclusion practice group publish Alerts in this series addressing a variety of legal topics that may impact employers’ diversity initiatives. For information on other diversity, equity, and inclusion training modules available to your organization, including details on our recent six-part webinar series, click here. To inquire about our training resources, implementing diversity and inclusion programs and initiatives in your workplace, or FordHarrison's commitment to diversity please contact our Diversity and Inclusion Partner, Dawn Siler-Nixon, at dsiler-nixon@fordharrison.com.
[1] Undoubtedly, this change will limit future and further news reports involving passenger attempts to fly with peacocks, pigs, squirrels, rabbits, ducks, hamsters, marmosets, and the like.
[2] These forms are titled (1) U.S. Department of Transportation Service Animal Air Transportation Form and (2) U.S. Department of Transportation Service Animal Relief Attestation From. Each is available on the United States Department of Transpiration’s website and may be available directly from air carriers.
