In the latest Weekly Wright Report:
- Is It a Pet, Or a Service Animal?
Is It a Pet, Or a Service Animal?
Do you want your cute poodle, Pierre, with you at work, in a restaurant, or while traveling? Some employers, restaurants, businesses and airlines may have justifiable concerns. What if Pierre barks, bites, becomes unruly or is overly friendly to others nearby? It comes down to the difference between a legitimate service animal and an emotional support animal – a pet. The claim that the animal is a service animal is frequently abused. This is not an uncommon problem for the airline industry. In fact, the United States Department of Transportation has adopted restrictive rules. Passengers claiming the need for a service animal to accompany them on flight must pre-file a form verifying the animals good health, training and good behavior. However, private businesses do not have that protection.
A service animal is an animal trained to perform tasks that benefit a person with a sensory, intellectual, physical or mental disability. The tasks to be performed by the animal must directly relate to the particular disability. While some pets relieve loneliness by providing companionship and may mitigate depression, anxieties or phobias, they may not have the special training to assist with a disability recognized by the Americans with Disabilities Act. Unfortunately, the ADA does not provide a distinction between a service support animal and an emotional support animal. However, Titles II and III of the ADA regulate service dogs and, for some obscure logic, also miniature horses. Title II applies to state and local governmental services; Title III applies to places of public accommodation. Title I of the ADA prohibits discrimination in the workplace.
What do you do if a patron brings an animal into your place of business and you do not have a “no-pets” policy? Remember, the ADA regulates service dogs and miniature horses. If the animal is neither, you may ask the person to leave. However, should the companion be a dog and the connection with a disability is not obvious (seeing-eye dog for instance), the business may inquire: Is the dog necessary because of a disability, and what work or service has the dog been trained to perform. These are the only safe questions. The business cannot ask about the nature of the disability. Nor can the business ask for a demonstration of the dog’s service performance or any sort of certification that the dog is a service animal. Nor is a service dog required to wear any form of identification or clothing such as a vest.
Once it has been determined that the dog is in fact a legitimate service dog, it and its owner have the same access privileges as any other patron. There are limited exceptions. For instance, if the specific location requires a sterile environment, if the animal’s presence would be a violation of public health regulations, or its presence would interfere with the designated use of the location. The business cannot collect a fee or surcharge from the patron. Yet, if it is the custom of the business to charge patrons for damage, the disabled patron may be similarly charged. In addition, the service dog may be excluded for bad behavior such as growling, barking, aggressiveness or being out-of-control but only after the owner is given an opportunity to regain control of the dog. However, the patron cannot be required to leave.
An employer may be required to allow a service or emotional support animal as a reasonable accommodation to an employee protected under the ADA. The request should be handled in the same manner as other requests for accommodations. Medical documentation may be required as well as some connection between the nature of the disability and the training of the service animal. How does the presence of the animal assist the employee in performing his or her job? Will the presence of the animal create a health risk or an undue hardship that cannot be mitigated or eliminated by a reasonable accommodation?
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