Service Animals and the ADA: What You Need to Know April 2014 Seyfarth Shaw LLP
Presenters ADA Title III Team members: Andrew McNaught amcnaught@seyfarth.com Kristen Verrastro kverrastro@seyfarth.com 2
What is a service animal under the ADA? A service animal under ADA Title III is limited to any dog that is individually trained to do work or perform tasks for individuals with physical, sensory, psychiatric, intellectual, or other mental disabilities. Other species of animals, whether wild or domestic, trained or untrained, are not service animals (but see following slide on miniature horses); Note: There are some broader state laws that define service animals to include other animals. Pets are not service animals ; and Animals whose sole function is to provide emotional support, comfort, therapy, companionship, or crime deterrence are not service animals. 3
What is a service animal under the ADA? The ADA also requires facilities to make reasonable modifications in policies, practices, or procedures to permit an individual with a disability to be accompanied by a miniature horse (rather than a dog) if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. Miniature horses generally range in height from 24-34 to their shoulders, and weigh between 70-100 lbs. There are four factors for assessing whether miniature horses can be accommodated at your facility. 4
What constitutes work or tasks performed by a service animal? The work or tasks performed by a service animal must be directly related to the individual s disability. Examples: Guiding people who are blind Pulling a wheelchair Alerting and protecting a person who is having a seizure Retrieving dropped items Alerting individuals who are deaf or hard of hearing to the presence of people, sounds, hazards, etc. Calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack Reminding a person with mental illness to take prescribed medications 5
What constitutes work or tasks performed by a service animal? The following are NOT considered work or tasks performed by a service animal: The provision of emotional support, well-being, comfort, or companionship Crime deterrence 6
How do you know whether an animal is a service animal? What not do: Do not ask for any paperwork, certificate, or other documents to verify the animal s status. You cannot ask for proof that the animal has been certified, trained, or licensed as a service animal. The animal is not required to wear any special garments. Do not ask the person to explain or verify the nature of their disability. Do not pet or interact with the service animal. 7
How do you know whether an animal is a service animal? If it is not obvious that the animal is a service animal, you can ask the following two questions: 1. Do you need this animal because of a disability? 2. What work or tasks has the animal been trained to perform? Note: Do not ask the animal to demonstrate the work or task. If the person answers no to the first question, then the animal is not a service animal. If the person says yes in response question 1, ask question 2. If the person is unable to identify the work or tasks that the animal has been trained to perform or is in training to perform, the animal is not a service animal. 8
How do you know whether an animal is a service animal? Lerma v. Cal. Exposition & State Fair Police, No. 2:12-cv-1363 KJM GGH PS, (E.D. Cal 2014) Plaintiff tried to enter park with her puppy saying it was a service animal. Officer employee asked what task the dog had been trained to perform and if the dog was housebroken. Plaintiff refused to answer and threatened legal action. Officer employee told Plaintiff that it could not be ascertained whether service animal under ADA so animal not permitted, but Plaintiff could enter. 9 Magistrate judge recommended summary judgment be granted.
What are your obligations with regard to service animals? Allow individuals with disabilities to bring their service animals into all areas of a facility where customers are normally permitted. Into public food and beverage areas and swimming pool area, but not in pool or whirlpool Into hospitals, but not in operating rooms or burn units where presence could compromise sterility You do not have to feed or care for a service animal. 10
What are your obligations with regard to service animals? You may not impose charges or other restrictions on a guest just because the guest has a service animal. No pet fees, waivers, special cleaning fees, special entrance or usage fees can be charged. If an animal causes actual damage, handle the damage and charges in the same manner as any other damage caused by a guest. Document the damage. 11
What restrictions can you place on service animals? Service animals must be harnessed, leashed, or tethered, unless these devices interfere with the service animal s work or the individual s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls. See the DOJ s Fact Sheet for Helpful Information: http://www.ada.gov/service_animals_2010.pdf 12
When can a service animal be excluded from the premises? Animal is out of control and the handler does not take effective corrective action to gain control. (Make sure to document animal s behavior). Give a warning first. Animal is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal s presence. Never exclude a service animal without manager approval and documentation of the reason. 13
Reasons that cannot be used to exclude a service animal Invalid reasons for denying access or refusing service to individuals with service animals: Dog is an aggressive breed. The exclusion must be based on specific animal s behavior. Guest allergies. Guest fear or dislike. 14
Reasons that cannot be used to exclude a service animal You may not exclude a service animal from a facility even if state or local health codes prohibit animals on the premises. The ADA is a federal law that trumps state or local laws and regulations that are less protective of the rights of individuals with disabilities. For example, service animals must be allowed in public areas of places that sell or prepare food, even if state or local health codes prohibit animals. 15
How to respond to complaints about service animals by other customers If another guest complains about a service animal, inform the guest that the animal is a service animal and it is entitled to be in the facility. Accommodate both guests by assigning them to opposite sides of the room or facility, if possible. People with disabilities cannot be isolated from, or treated less favorably than, other patrons on the basis of their disability. 16 If the animal is out of control and the guest does not take effective responsive action, or if the animal is not housebroken, a manager can request that the animal be removed.
STATE LAWS Some state laws echo or adopt the ADA directly: California: The Unruh Civil Rights Act - California Civil Code 51(f): A violation of the right of any individual under the federal Americans with Disabilities Act... shall also constitute a violation of this section. 17 2011 Seyfarth Shaw LLP
STATE LAWS Some state laws/regulations define service animal more expansively than the ADA: 1. Illinois: a service animal is an animal trained in obedience and task skills to meet the needs of a disabled person. 510 ILCS 70/2.01c (emphasis added). 2. Iowa: includes service dogs and assistive animals ; assistive animal means a simian or other animal specially trained or in the process of being trained to assist a person with a disability. IA ST 216C.11(1) (emphasis added). 3. Montana: a service animal includes a dog or other animal individually trained to provide assistance to an individual with a disability. MT ST 49-4-203(2) (emphasis added). 4. North Dakota: a service animal includes any guide dog, signal dog, or other animal trained to do work, perform tasks, or provide assistance for the benefit of an individual with a disability. ND ST 25-13-01.1 (emphasis added). 5. Florida: service animal is an animal that is trained to perform tasks for an individual with a disability. FL ST 413.08 (emphasis added). 6. Washington: service animal is an animal that is trained for the purposes of assisting or accommodating a disabled person s sensory, mental, or physical disability. WA ST 9.91.170 (emphasis added). 18 2011 Seyfarth Shaw LLP
STATE LAWS The ADA does not disturb any state or local law/regulation that provides protection for individuals with disabilities at a level greater or equal to that provided by the ADA. Most state laws protect service animals in training. 19 2011 Seyfarth Shaw LLP
STATE LAWS Recent Developments: Texas: HB 489 was signed into law in June of 2013 and took effect January 1, 2014. Makes it a misdemeanor to inquire beyond the two permissible ADA questions. TX Hum Res 121.003, 121.004. Makes it a misdemeanor to misrepresent an animal as a service animal by outfitting the animal with a harness or leash that is often used by service animals. TX Hum Res 121.006. California: In February 2014, the California State Senate held an informational hearing on the use of fake service dogs and fake identification to determine whether it is an issue that should be addressed legislatively. 20 2011 Seyfarth Shaw LLP
Your Policy Have a written policy that is minimally ADA-compliant, and potentially broader, particularly if you are a company that does business in many states. Keeping up with different state laws may be too much of a burden and you may wish to expand your policy to include any animal as a service animal, so long as the animal is trained to perform work or tasks. Conduct appropriate training on your policy. Especially for front line employees like store managers, assistant managers, shift supervisors, etc. 21
Accommodating Emotional Support/Comfort Animals in Long-term Rentals If you are a housing provider, or are an extended stay property (i.e. you have rental agreements for thirty (30) days or more), you also may be covered by the Fair Housing Act (FHA), which has different requirements. The FHA requires housing providers to make reasonable accommodations for emotional support/comfort animals. Documentation can be requested to support such requests for reasonable accommodations to establish that the resident has a disability and the disability related need for the animal. Contact legal for advice in this situation. 22
QUESTIONS? Questions from webinar participants For further questions, please contact: Andrew McNaught Kristen Verrastro amcnaught@seyfarth.com kverrastro@seyfarth.com 23