Service and Support Animals: What Companies Can and Cannot Do | Akerman LLP – HR Defense

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We have all seen it. The unruly pet dog brought into a restaurant, yelping, or the large dog running through a store dragging its owner who, of course, claims it’s a “service animal,” even though it doesn’t. is clearly not the case. Many people need and have legitimate service animals, while others need and have emotional support animals. But the two are not the same and do not enjoy the same level of protection.

Abuse of the concept of service animals is widespread, so much so that the United States Department of Transportation (DOT) in December 2020 adopted new, more restrictive rules for traveling with them by plane. Airlines are allowed to treat emotional therapy animals as pets, rather than service animals, and to require passengers with disabilities traveling with a service animal to complete and submit in advance the airline a DOT form, attesting to the animal’s training, good behavior, and health, but the companies do not have this option. Businesses faced with employees or customers seeking to pass off pets as service animals face a difficult dilemma and need to know two things: which animals are protected and what can they do when a customer and /or an employee wishes to bring an animal on his premises?

Service versus an emotional support animal

A service animal is an animal individually trained to perform work or perform tasks for the benefit of a person with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability. The work or tasks performed by a service animal must be directly related to the person’s disability. Although emotional support, comfort and/or therapy animals provide companionship, ease loneliness and sometimes help with depression, anxiety and certain phobias, they are not specially trained to perform tasks that help people with disabilities.

The Americans with Disabilities Act (ADA) provides guidance on service animals. Title II, which applies to state and local government services, programs, and activities, and Title III, which applies to public accommodations, specifically limits a service animal to one dog and does not cover emotional support, comfort and therapy animals. Interestingly (and strangely), the ADA regulations also contain a provision covering miniature horses, which states that companies must make reasonable changes to policies, practices, or procedures to permit the use of a miniature horse by a disabled person if the Miniature Horse has been individually trained to perform work or perform tasks for the benefit of the disabled person.

ADA Title I, which prohibits discrimination in the workplace, does not, however, define what constitutes a service animal, or distinguish between a service, emotional support, comfort and /or therapy.

For Customers: What Companies Can and Cannot Do

So a customer walks into your business with an animal and you have a no pet policy. What can you do?

First, if the animal is anything other than a dog or miniature horse, it is not a protected service animal under the ADA and you can ask that customer and their animal to leave.

However, assuming the animal is a dog, where the disability and service are not necessarily obvious, businesses are permitted to ask their customers two specific questions to determine if the dog is a protected service animal:

  • “Is the dog required due to a disability? ” and
  • “For what job or task was the dog trained?”

That’s it. The customer cannot be asked about their disability, cannot be asked to show proof that the dog has been certified, trained or licensed as a service animal, and cannot be required to demonstrate the task(s) for which the dog was trained. perform. Service dogs are not required to wear vests or carry any form of identification.

Persons with disabilities who are accompanied by service dogs must be permitted in all areas of a business where members of the public may go and cannot be separated from other customers. Additionally, businesses cannot request or require a person with a disability to pay any supplement or deposit of any kind, even though such fees are normally required for pets. However, if the business normally charges non-disabled guests for damage they cause (such as a hotel charging for the cost of repairing a damaged room), it may also charge a disabled person that charge for damage caused by the service. dog. Because service dogs are working animals and not pets, companies should advise their employees to leave service dogs alone and not to pet them, talk to them, or offer them treats.

Note that the protection of assistance dogs is not exhaustive. Businesses can exclude service dogs from their premises if the dog is unclean, poses a direct threat to the health or safety of others (such as barking, growling or being aggressive towards other customers) and/or is out of control (such as jumping on other people or running away from the owner), and the owner takes no effective action to control the dog. However, before excluding the service dog, companies must first ask the owner to take control of the animal. If an assistance dog is removed from the premises, the person with a disability should always be given the opportunity to re-enter the business without the animal.

Additionally, there are certain circumstances where the presence of a service dog may be dangerous or may change the fundamental nature of the business and therefore may be excluded. This includes situations where having a service dog could compromise safety (a sterile environment like an operating room), violate public health rules (public swimming pools), or change or interfere with the basic nature of the business (such as a zoo exhibit, where the service dog might disturb the animal on display). Although assistance dogs may be excluded from limited and specific areas, the assistance dog must still be allowed in other areas where these same concerns do not apply, such as waiting rooms, the terrace of the swimming pool or the dining halls of the zoo, respectively.

For employees: service animals as a reasonable accommodation

Now, suppose an employee asks to bring their service or emotional support animal as housing to the workplace, even though your company has a no-pets policy. Should this be allowed? As is often the case, it depends.

Since Title I does not specifically address service animals and therefore does not limit the type of animal a person with a disability may bring into the workplace, consideration may be given to allowing a service animal or emotional support to accompany a disabled person to work. reasonable accommodation of the workplace. This request should be treated like any other request for reasonable accommodation.

As with other accommodation requests, the employer may request medical documentation regarding the existence of the disability and how the animal assists the individual in performing their job. From there, the employer and employee must engage in the interactive process to determine if there are other alternatives available and whether the requested accommodation will create undue hardship for the employer or pose a direct threat. , that is, a significant risk of significant harm to health. or the safety of that employee or others, which cannot be eliminated or reduced by reasonable accommodation.

Note that poprovisional allergies or safety concerns may not be valid reasons to outright deny the use of a service or emotional support animal, as a recent lawsuit filed by the U.S. Equal Opportunity Commission shows. (EEOC) against a national craft retailer. In this case, shortly after starting work at the craft store, an employee told her manager that she needed to bring her service dog to work to help her with her PTSD, anxiety, and mental illness. depression. According to the EEOC, the company’s human resources representative met with the employee to discuss her request, but concluded that the dog would present a safety issue because a co-worker or customer might be allergic or trip over the dog. , or the dog might break something. Store managers were unwilling to allow the employee’s service dog into the store to see if there was a real safety issue, and the company eventually fired the employee when she didn’t. couldn’t work without his service dog, the EEOC said.

As this case shows, one solution may be to allow hosting on a trial basis, with an established plan and ground rules, to see if it works. Although there are some workplaces where it would be nearly impossible to safely house a service or emotional support animal, such as an emergency room or a factory where a forklift is operating, assuming nature environment does not pose a direct safety risk, employers should consider all reasonable requests for these types of accommodations.

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