Service animals have unique skill sets that enable them to perform many tasks far better than any human. From K-9 units, to seeing-eye dogs, to ski-patrol avalanche rescue dogs, working dogs are very much a part of daily life.
Increasingly, those with disabilities find assistance and comfort through service animals. Currently, there are an estimated 387,000 service dogs in the United States. Service dogs help the blind navigate, help the paralyzed to pick up and carry objects and provide emotional stability to those with serious depression and anxiety. Unfortunately, some people seek to take advantage by passing their untrained pets off as service animals to bring them everywhere they go. A recent article appearing in the USA Today, “Several States Crack Down ‘Fake’ Service Dogs,” discusses this trend.
The Americans with Disabilities Act (ADA) allows an individual with a qualifying disability to bring a service animal just about anywhere, including restaurants, office buildings, airports and airplanes, even if those locations otherwise profess to be “no pet” zones. A service animal need not wear a vest, ID tag or specific harness, be a specific breed or even hold a certification.
Whether an animal qualifies as a service animal depends on the context. The ADA defines a service animal as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability ….” However, “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Basically, a service animal must be (a) a dog, (b) with specific training (c) to perform a task (d) that is directly related to helping the disabled owner function.
The rules are a little different in the multi-family residential housing context. The Fair Housing Act (FHA) and a recent notice from the U.S. Department of Housing and Urban Development (HUD) make reference to assistance animals rather than service animals. Under HUD rules “an assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” Importantly, HUD’s position is that an assistance animal need not “be individually trained or certified.” Further, an assistance animal need not be a dog. It is currently HUD’s position that a disabled tenant is entitled to bring an assistance animal into his home even if the lease would preclude it. Just about any animal that provides disability related assistance or relieves disability related symptoms will qualify.
These policies are well intended and beneficial for those with disabilities who rely on service animals to do things that many take for granted. That said, these regulations also impose an additional burden on business owners to make bright line determinations in what is a very murky area of the law; that is, whether an animal qualifies as a service or assistance animal, for which access must be granted. Adding to this challenge, the ADA restricts the questions a business can ask a person bringing an animal into an establishment to the following two:
- Is the service animal required because of a disability?
- What work or task has the dog been trained to perform?
Federal regulations provide little guidance about what a business can do with the answers to these questions. Getting it wrong could be costly. Both the ADA and the FHA allow a disabled individual to bring suit for disability discrimination if she and her service animal are wrongfully turned away. Yet, if a business were to permit an untrained animal into its establishment and the animal ends up hurting another patron, the business could find itself sued by the injured patron on a premises liability theory; i.e. that the business did not do enough to protect its patrons from such harm.
The law is still developing in this area and bright line rules are hard to come by. However, a few guidelines are discernable. The ADA defines a person with a disability as one who has a physical or mental impairment that substantially limits one or more major life activity. Examples include partial or completely missing limbs, mobility impairments requiring the use of a wheel chair, autism, cancer, diabetes, intellectual disabilities, major depressive disorder, blindness, post-traumatic stress disorder and schizophrenia, among others. Because many disabilities are not readily apparent, businesses would do well not to try and diagnose their patrons. If a patron claims a disability, there is little to be gained by challenging that assertion. Similarly, if a patron claims that their animal is a service or assistance animal, it is generally advisable to allow the animal access to the establishment, but to monitor the animal as closely as prudence allows. If the animal becomes disruptive or destructive, a business owner has every right to ask the animal and its handler to leave.
If a business establishes written policies that follow these guidelines and then trains its staff to abide by them, the risk of liability can be greatly reduced. In sum, let sleeping dogs lie, but keep that dog on a short leash.
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