With everything from alpacas, pigs and turkeys, to even a snake being claimed as service animals, it is not surprising that many business owners are asking what truly qualifies as a “service animal” under the law. Just last fall, a Wisconsin McDonald’s encountered a situation where a patron wanted to dine with her service kangaroo. With the ability to obtain a service vest and even an “authentic” certificate just a few clicks away, more and more people are making claims that their accompanying animals are not mere pets, but service animals. Now, more than ever, it is important that business owners understand what the law says about service animals.
Although some may genuinely believe the emotional or other support provided by their pets should give them special designation, the Americans with Disabilities Act (“ADA”) provides a narrow definition to the term “service animal.” Businesses are only required to permit those animals that fall within this definition. Under Title III of the ADA, the term “service animal” is limited to a dog or miniature horse individually trained to perform tasks which assist a person with a disability. 28 C.F.R. § 35.104 and 28 C.F.R. § 35.136. The ADA regulations give a non-exhaustive listing of examples of the tasks service animals perform, including:
- assisting a person who is blind/low-vision or deaf/hard of hearing with determining the presence of people or sounds,
- pulling a wheelchair,
- assisting a person with seizures,
- retrieving medicine,
- alerting a person with allergies to allergens, and
- assisting those with psychological or neurological conditions by helping them avoid triggers to their behaviors.
The regulations specifically exclude from the definition, any animal present as a crime deterrent or for emotional support.
The requirement that a service animal be “individually trained” does not require professional training, but does require “proper” training which results in a discernible skill on the part of the service animal. In re Kenna Homes Co-op. Corp., 557 S.E.2d 787 (W. Va. 2001). Other courts analyzing this issue have further held that businesses may not need to permit service animals if the animal presents a health or safety risk to the other patrons or is disruptive to the business. See e.g., Capell v. N.C. Div. of Vocational Rehab. Services, 2011 WL (W.D.N.C. 2011) - Finding that a hospital does not violate the ADA by refusing to allow a service animal to accompany a patient for an inpatient stay or denying a service animal access to certain areas of the hospital when there are patient and health and safety risks.
Keep in mind that while states cannot enforce legislation less restrictive than the ADA, they can enact laws which provide more protection than the ADA provides. Indeed, both North Carolina and West Virginia’s statutes allow “service animals” to accompany a disabled person in public places. N.C.G.S. §168-4.2 and W. Va. Code §5-15-4. North Carolina does not specifically define what a service animal is, leaving room for interpretation. West Virginia defines it “to include a guide dog, signal dog or other animal individually trained.” W. Va. Code § 5-15-3. Pennsylvania, Ohio and Virginia either limit service animals consistently with the ADA or do not provide specific state guidance.
While Title III provides important guidance for business owners’ interactions with the public, it is of limited use in an employment situation. Title I of the ADA – which addresses the need to accommodate disabled employees – does not provide a definition of a service animal. When courts have addressed this issue, they have established a rule that employers must treat an employee’s request to bring a service animal into the workplace as a request for a reasonable accommodation. Since there is no definition given for service animals under Title I, emotional support/therapy animals are not automatically excluded under Title I, nor do the animals have to be dogs or miniature horses. Because of this, an employer should never implement an across-the-board ban on any particular animal type or on service animals generally. Any employee requesting the ability to bring his or her service or emotional support animal into the workplace should be engaged in the interactive process in the same manner as any other employee seeking an accommodation. After the accommodation is sought, it is at this point appropriate to assess the implications of the request and determine what is reasonable and the best manner in which to accommodate the disabled employee.
In Edwards v. U.S. E.P.A., the United States District Court for the District of Columbia noted the dearth of law existing on the issue of reasonable accommodation in the workplace, related to service animals. 456 F.Supp.2d 72, 101 (D.D.C. 2006). The Court went on to explain, however, that accommodation analysis under the Fair Housing Act (“FHA”) could be used since the FHA’s reasonable accommodation provision is analogous to the ADA provision. Id. Under this analysis, an employee’s need for the service animal and effectiveness of the service animal in resolving disability-based problems are valid considerations for an employer. Id. Another important consideration is whether the service animal is necessary for the employee to perform the essential functions of their position. Id. Unfortunately, in the years since this decision, there remains a shortage of case law analyzing the reasonableness of an employee’s request for an accommodation involving a service animal. Because this is still a developing area of law, when in doubt, employers should consult with their attorney to assist in the accommodation process.
If you have any questions about this aspect of labor and employment law, or any other issue, please contact our Labor & Employment Practice Group.
|