Service Animals and the ADA - Part IV
The Americans With Disabilities Act (ADA) requires covered entities to make "reasonable modifications" in their policies, practices, or procedures when necessary to accommodate people with disabilities. Many individuals with disabilities use a service animal to conduct their daily life activities. Thus, businesses that have a "no pets" policy generally must modify the policy to allow “service animals” into their facilities.
Under the ADA, a “service animal” is a dog or a miniature horse that has been individually trained to do work or perform tasks directly related to the person's disability; for example, a dog that is trained to alert a person with diabetes when his blood sugar reaches high or low levels, a dog that is trained to remind a person with depression to take her medication, or a dog that is trained to detect the onset of a seizure and then help a person who has epilepsy remain safe during the seizure. The ADA does not restrict the type of dog breeds that can be a “service animal.” Miniature horses generally are 24 to 34 inches in height and weigh 70 to 100 pounds.
Animals that provide comfort just by being with a person, but which have not been trained to perform a specific job or task, do not qualify as “service animals” under the ADA. A psychiatric service dog trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, would qualify as a “service animal.” However, if the dog's mere presence provides comfort, that would not be considered a “service animal” under the ADA.
Emotional support animals or comfort animals are often used as part of a medical treatment plan. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias. Even though some states have laws defining emotional support or comfort animals, these animals are not limited to working with people with disabilities. But if they do assist an employee that qualifies as having an emotional or mental disability, they may be considered for an accommodation by some employers.
Emotional support animals, comfort animals, and therapy dogs are not service animals under Title II and Title III of the ADA. But because there is not a specific definition of service animal under Title I, some employers may have to consider allowing an employee to bring in an animal such as an emotional support animal. However, employers do not have to allow an employee to bring an animal into the workplace if it is not needed because of a disability or if it disrupts the workplace.
The employee may request, and some non-food service employers may allow as an accommodation, an animal that does not meet the ADA definition of “service animal”. For example, the employee could request that their comfort animal, which does not meet the ADA definition of “service animal,” be allowed to come to work as an accommodation.
What Action(s) Can You Take If a “Service Animal” is Brought to Your Facility?
In situations where it is not obvious that the dog or miniature horse is a “service animal,” you may ask only two specific questions:
(1) is the dog a “service animal” required because of a disability? and
(2) what work or task has the dog been trained to perform?
You are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person's disability.
The company may assess the type, size, and weight of a miniature horse in determining whether or not the horse will be allowed. No size, weight, or breed restrictions are allowed with regard to dogs. 28 C.F.R. Pt. 36, app. A.
Supervision and Control of the Service Animal
The handler is responsible for supervising and controlling the “service animal.” The “service animal” must be harnessed, leashed, or tethered while in public places unless these devices interfere with the service animal's work or the person's disability prevents use of these devices. In that case, the person must use voice, signal, or other effective means to maintain control of the animal. For example, a person who uses a wheelchair may use a long, retractable leash to allow her service animal to pick up or retrieve items. She may not allow the dog to wander away from her and must maintain control of the dog, even if it is retrieving an item at a distance from her. Or, a returning veteran who has PTSD and has great difficulty entering unfamiliar spaces may have a dog that is trained to enter a space, check to see that no threats are there, and come back and signal that it is safe to enter. The dog must be off leash to do its job, but may be leashed at other times. Under control also means that a service animal should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quiet place. However, if a dog barks just once, or barks because someone has provoked it, this would not mean that the dog is out of control.
If a “service animal” is not under the control of the handler, poses a direct threat to the health or safety of others, has a history of such behavior, or is not housebroken, it may be excluded from your facility. However, if an animal is excluded for such reasons, you must still offer your goods or services to the person without the animal present.
In the case of food service establishments, service animals must be allowed to accompany their handlers to and through self-service food lines. Similarly, service animals may not be prohibited from communal food preparation areas, such as are commonly found in shelters or dormitories.
The ADA gives a person with a disability the right to be accompanied by his or her service animal, but covered entities are not required to allow an animal to sit or be fed at the table.
Allergies and Fear of Animals
Allergies and fear of animals are not valid reasons for denying access or refusing service to people using service animals. If employees or customers are afraid of service animals, a solution may be to allow enough space for that person to avoid getting close to the animal.
Most allergies to animals are caused by direct contact with the animal. A separated space might be adequate to avoid allergic reactions. If a person is at risk of a significant allergic reaction to an animal, it is the responsibility of the business or government entity to find a way to accommodate both the individual using the animal and the individual with the allergy.
Employee’s Need for Confidentiality
Additionally, the employer has to balance the employee’s need for confidentiality with the need to educate coworkers on how to interact with the service animal. To balance these two concerns, the employer might want to start with talking to the employee who will be bringing the animal to work and asking how the employee would like to handle educating coworkers. Hopefully, the employee wants to educate coworkers and is willing to do so. If not, the employer may want to simply let coworkers know that an animal will be present in the workplace and that they are not to interact with it. The EEOC says that an employer is limited to telling co-workers: “we’re emphasizing a policy of assisting any employee who encounters difficulties in the workplace.” And that’s it. If a coworker indicates that he has an allergy or phobia related to the animal, you should try to accommodate that employee.
Rudy Gomez, Partner
Miami Florida Office
rgomez@fordharrison.com | P: 305-808-2108
Elizabeth M. Rodriguez, Partner
Miami Florida Office
erodriguez@fordharrison.com | P: 305-808-2143
Part I - August 7, 2018 - "Drive-by" Lawsuits under the Americans with Disabilities Act Continue to Rise
Part II - August 14, 2018 - Does Your Business Comply with the ADA's Accessibility Requirements?
Part III - September 12, 2018 - Website Accessibility and Americans with Disabilities Act
