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Government Commentary: Mini-horses and dogs and peacocks, oh my

Commentary: Mini-horses and dogs and peacocks, oh my

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What businesses need to know about service and emotional support animals

Businesses are increasingly faced with the hairy problem of how to react when a customer or employee tries to bring an animal into the business. This article explores the applicable laws, how a business should handle these situations, what businesses are and are not required to permit.

Public and Employment Accommodation Requirements of the ADA

The Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of life including transportation, school and all public and private areas open to the general public and employment.

What is a service animal?

“Service animal” is not defined in Title I (the employment chapter) of the ADA, but it is defined in Title III (the public accommodation chapter). Paraphrasing, a service animal is a housebroken dog or a miniature horse that has been individually trained to perform a task or service for the benefit of an individual with a disability. Examples of work or tasks that a service animal can be trained to perform include “assisting individuals who are blind or have low vision with navigation and other tasks … , [or] providing physical support and assistance with balance and stability to individuals with mobility disabilities.”

Although service animals are required to have individualized training, this training does not have to be professional training. Service animals do not need any certificates or registrations, nor do they have to wear any specific vest or marker to indicate that they are a service animal.

What a service animal is NOT – Service animals versus emotional support animals

Title III of the ADA only permits individuals to bring service animals into any place of public accommodation. However, the Air Carrier Access Act and the Fair Housing Act also requires airlines and landlords to allow individuals to bring emotional support animals onto planes and into apartments, even if there are no-pet policies. These are the laws that produce viral news stories about bizarre emotional support animals, such as Dexter the emotional support peacock that a passenger tried to bring on a United Airlines flight.

According to Title III of the ADA, service animals are not emotional support animals or therapy/comfort animals. Emotional support animals are, generally, animals that are not specifically trained to do a task to aid a disabled individual but whose general presence provides a comforting, calming effect.

The line between a service animal and an emotional support animal can be blurry as both can aid individuals with disabilities. Service animals also differ from emotional support animals in that they can only be a dog or a miniature horse under Title III. Emotional support animals, on the other hand, can be any animal.

What businesses can and cannot ask about service animals

Title III of the ADA only permits business owners to ask two questions of people who come into their business with an animal so they can determine whether the animal is a service animal under the ADA:

• Is the animal required because of a disability?

• What work or task has the animal been trained to perform?

However, a business should not ask these questions if the animal’s tasks are obvious, such as a dog or miniature horse guiding a blind person, pulling a person’s wheelchair, or providing stability to someone with an observable mobility disability.

Businesses cannot ask someone with an animal to provide proof that the animal is trained, certified, or licensed as a service animal. Businesses also cannot ask a disabled person with a service animal to pay a surcharge for the animal, even if other people with animals are required to pay a fee. Local laws that prohibit specific breeds of dogs, such as pit bulls, do not apply to service animals.

What a businesses can ask an employee who wants to bring a service animal to work as a reasonable accommodation

When an employee asks to bring an animal to work as a reasonable accommodation for a disability, the employer can ask for far more information than it can of a public patron. In this case, the employer has a duty, just as in the case of any other disability accommodation request, to engage in the interactive process to determine the limitations caused by the employee’s disability and to try to come up with a reasonable accommodation that will allow the employee to perform their essential job functions without causing undue hardship to the employer.

Accordingly, if an employee requests to bring an animal to work, the employer can, and should, ask the employee questions to evaluate whether the employee has a disability, the limitations caused by the disability, the animal’s training, the task performed by the animal, and whether any other accommodation would allow the employee to perform their job functions.

Specifically, an employer can ask the employee to provide a questionnaire filled out by their health care provider explaining:

• Whether the employee has a disability

• The limitations of the employee’s condition

• The expected duration of the condition

• Specifically, what job functions the condition prevents the employee from performing; and

• Suggested accommodations that would allow the employee to perform their job functions.

To fill out a questionnaire that identifies:

• The animal’s training, including beginning and ending dates, the training agenda, the name of any trainer, and any license or certification earned

• Whether the animal is housebroken

• The animal’s vaccination records

• What task or work the animal is trained to perform

• Whether the animal has ever attacked or bitten a person; and

• Whether there is another accommodation that would allow the employee to perform their job functions.

While evaluating the request to bring an animal to work, employers may also ask an employee to bring in their animal for a demonstration so that the employer can see how the animal will affect the workplace and identify any issues.

The Equal Employment Opportunity Commission’s published guidelines state that the use of a service animal can be a reasonable accommodation for an employee with a disability. However, the EEOC also says that allowing an employee leave to train a new service animal can also be a reasonable accommodation.

The EEOC further suggests that employers should consider allowing employees to bring emotional support animals to work as reasonable accommodations. As previously noted, Title I does not define “service animal” and merely states that an employer should grant employees reasonable accommodations. This leaves open to interpretation whether an employer only has to allow service animals, as defined in Title III, as reasonable accommodations or may also be required to allow emotional support animals or other animals that do not qualify as service animals under Title III to accompany employees to work.

Employers are most likely to see requests to bring emotional support animals to work as reasonable accommodations for psychiatric disabilities like post-traumatic stress disorder (PTSD), depression and anxiety. However, even if an employer receives a request to bring an emotional support animal to work, the animal should still be housebroken and have basic training so that it is under its handler’s control at all times and will not be disruptive in the workplace.

Hannah P. Parks is an associate at Kelly Hart. Her practice focuses primarily on labor and employment-related legal matters.


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