[acb-hsp] Gone to the Dogs

[peter altschul]

Gone to the Dogs: Rules on Service Animals to Become Stricter

by James J.  McDonald, Jr., managing partner, Fisher and 
Phillips, LLP

Regulations issued in 1991 following the enactment of the 
Americans with Disabilities Act required that public 
accommodations (which include restaurants, hotels, retail 
establishments, theaters, and concert halls) modify their 
policies, practices, or procedures to permit the use of a service 
animal by an individual with a disability.  Essentially this 
means that service animals accompanying persons with disabilities 
have to be admitted to establishments with policies that 
otherwise exclude pets or other animals.

When the ADA was enacted, most service animals were "seeing-eye" 
dogs that assisted blind or sight-impaired persons.  In most 
cases, these dogs were highly trained and, because of their 
extensive training, were not likely to create a nuisance or a 
sanitary problem.

Over time, however, a variety of species came to be characterized 
by their owners as service animals, including pigs, horses, 
monkeys, snakes, lizards, birds, and rodents.  Also, dogs and 
other animals that merely provide emotional comfort to their 
owners have been characterized as service animals.

This proliferation of creatures claimed to be service animals has 
posed obvious problems for many restaurants and hotels in terms 
of safety, sanitation, and disturbance of other guests.  Until 
now, however, proprietors were largely powerless to bar these 
types of animals from their establishments.

The U.S.  Department of Justice has issued new regulations 
effective March 15, 2011, however, which will substantially limit 
the types of animals that will qualify as service animals under 
the ADA.  First, only dogs (and miniature horses in some cases) 
will qualify as service animals under the new regulations.  
"Other species of animals, whether wild or domestic, trained or 
untrained," will not qualify.  The new regulations, however, do 
not place limits on breed or size of dog.

Second, the dog must be "individually trained to do work or 
perform tasks for the benefit of an individual with a disability, 
including a physical, sensory, psychiatric, intellectual, or 
other mental disability." The regulations go on to state that the 
work or tasks performed by the service animal must be directly 
related to the handler's disability.  Examples of work or tasks 
set forth in the regulations include:

a..  Assisting sight-impaired persons with navigation or other 
tasks

b..  Alerting hearing-impaired persons to the presence of people 
or sounds

c..  Providing nonviolent protection or rescue work

d..  Pulling a wheelchair

e..  Assisting an individual during a seizure

f..  Alerting an individual to the presence of allergens

g..  Retrieving items such as medicine or the telephone

h..  Providing physical support and assistance with balance and 
stability to individuals with mobility impairments

i..  Helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or 
destructive behaviors

Under the new regulations, the mere "provision of emotional 
support, well-being, comfort, or companionship does not 
constitute work or tasks" for purposes of the definition of 
service animal.  Thus, animals that provide only comfort or 
emotional support for their owners will no longer qualify as 
service animals.

For a dog to qualify as a service animal to an owner with a 
psychiatric disability under the new regulations, the dog must be 
trained to perform specific work or tasks.  Examples given in the 
guidance accompanying the new regulations of tasks performed by 
psychiatric service animals include reminding the handler to take 
medicine, providing safety checks or room searches for persons 
with posttraumatic stress disorder, interrupting self-mutilation, 
and removing disoriented individuals from dangerous situations.

The guidance also states that a dog that is used to "ground" a 
person with a psychiatric disorder will qualify as a service 
animal if the dog has been trained: (1) to recognize that a 
person is about to have a psychiatric episode and (2) to respond 
by nudging, barking or removing the person to a safe location 
until the episode subsides.

The new regulations additionally clarify that "attack dogs" 
trained to provide aggressive protection of their owners will not 
qualify as service animals.  The crime-deterrent effect of a 
dog's presence, by itself, does not qualify as "work" or "tasks" 
for purposes of the service animal definition.

The new regulations also formalize prior Justice Department 
technical assistance addressing the use and handling of service 
animals.  The regulations provide that a public accommodation may 
ask an individual with a disability to remove a service animal 
from the premises if the animal is not housebroken, or if the 
animal is out of control, and the animal's handler does not take 
effective action to control it.  (Ordinarily, the regulations 
state, a service animal shall have a harness, leash, or other 
tether, unless the person with a disability is unable to use a 
harness, leash, or tether or the use of such a device would 
interfere with the animal's ability to perform its work or 
tasks.) If a service animal is removed for any of these reasons, 
the person with a disability must still be permitted to access 
the establishment's goods, services, or accommodations without 
the animal being present.  The regulations also confirm that a 
public accommodation is not responsible for the care or 
supervision of a service animal.

The regulations provide that a public accommodation may not ask 
about the nature or extent of a person's disability, but that it 
generally may make two inquiries to determine whether an animal 
qualifies as a service animal; it may ask: (1) if the animal is 
required because of a disability, and (2) what work or task the 
animal has been trained to perform.  These inquiries may not be 
made, however, when it is readily apparent that the animal is a 
service animal, such as where a guide dog is guiding a blind 
person or a dog is pulling a wheelchair.  Furthermore, a public 
accommodation may not require documentation, such as proof that 
the animal has been certified, trained, or licensed as a service 
animal.  Nor may a public accommodation require a person with a 
disability to pay a surcharge for a service animal, even if it 
applies such a surcharge for pets.

These regulations will not apply to landlords or airlines, which 
are governed by the Fair Housing Act and the Air Carrier Access 
Act, respectively.  It is also not yet clear that these 
regulations, and particularly the definition of a service animal, 
will be applied by courts to cases brought under Title I of the 
ADA which covers employment.

A good argument may be made, based on existing case law, that a 
stricter standard would apply under Title I.  Unlike under Title 
III, where a dog must be allowed onto the premises if it 
qualifies as a service animal and does not leave a mess or cause 
a serious disturbance, an employee under Title I of the ADA is 
entitled only to such accommodations as are necessary to enable 
him or her to perform the essential functions of the job.

An employee, therefore, will likely need to show that the 
presence of a service animal is needed for the employee to be 
able to perform his or her essential job duties.  An animal that 
provides only comfort or emotional support to an employee, but 
that is not needed in order for the employee to be able to work, 
will not likely qualify as a reasonable accommodation under Title 
I of the ADA.

These new regulations give long-needed clarity to hotels, 
restaurants, retailers, and other public accommodations regarding 
which animals must be allowed as service animals, and under what 
circumstances.  No longer will these establishments need to allow 
patrons to bring exotic, dangerous, disruptive, or unsanitary 
animals with them as purported "service animals."

James J.  McDonald, Jr.  is managing partner of the Irvine, 
Calif.  office of the national labor and employment law firm 
Fisher and Phillips LLP.