It’s the busy shopping season, and a customer, who does not seem to have any disabilities, comes in with a miniature horse on a leash. What do you do? Well, there are only two questions you can legally ask this person in this situation. The first is above in the title. The other is “What work or task has your miniature horse been trained to perform?” That’s it. Not “What disability is your miniature horse trained to assist?” Not “Can we see some medical documentation for your disability and need to have a service animal?” Not “Can we see certification that your miniature horse is actually a service animal?” And yes, if you were wondering, a miniature horse can be a service animal.
Under Title III of the Americans with Disabilities Act (ADA), private businesses that are publicly accessible must permit the use of a service animal by an individual with a disability. The Department of Justice (DOJ) defines a service animal as a dog that is individually trained to work or perform tasks for an individual with a disability including a physical, sensory, psychiatric, intellectual, or other mental disability. The DOJ later revised this definition to include miniature horses. Any other species of animal, wild or domestic, trained or untrained, is not considered a service animal. The work that a service animal completes must be directly related to the person’s disability. This includes pulling a wheelchair, guiding the blind, alerting people who are deaf, alerting or protecting a person having a seizure, and performing other tasks.
There are several traps and pitfalls for the unknowing employer or business.
Service animals are allowed to go everywhere the public is allowed. Under the ADA, service animals are working animals—not pets—so they must be allowed everywhere the public is allowed. Even if your business has a “no-pets” policy, a service animal is still allowed on premises. A service animal, however, may be prohibited from certain areas if its presence interferes with a legitimate safety requirement of the facility (i.e. surgery room or burn unit in a hospital). Businesses that sell food still must allow service animals in the public areas even if state or local health codes prohibit animals on site.
Service animals may be removed from the premises if not under control. A service animal may be removed if: (1) it is not housebroken or (2) it is out of control and the owner is not able to control it. An owner shall have the service animal on a harness, leash, or other tether unless the owner cannot use these due to a disability or the restraint would interfere with the service animal’s performance of task. If no harness is used, the animal must be under the owner’s control via voice command, signals or other method.
If a service animal is removed, continue to allow access to owner. A business should continue to allow the owner to obtain goods, services, and accommodations without having the animal on the premises after removal of the service animal.
You cannot isolate people with service animals. People who use service animals cannot be treated less favorably than other patrons or charged additional fees not charged to other patrons without animals. If an establishment normally charges a deposit or fee for individuals with pets, it must waive this fee for service animals. However, if an establishment normally charges a fee for the damage an individual causes, it may also charge the owner for any damage caused by the service animal. Further, fear or allergies are insufficient reasons to preclude access a service animal. An accommodation should be made to place the person with allergies and the service animal in different places in the room or in different rooms, if possible.
Staff are not required to provide for the care or supervision of a service animal.
An emotional support animal is not a service animal. While emotional support animals or comfort animals are often used as therapy animals, they are not considered service animals under the ADA; however, other laws may require an accommodation for emotional support animals. If an animal is merely to provide emotional support and has not been trained to provide a task directly related to a disability, you do not need to make an accommodation under the ADA.
Other state and federal laws may define service animals more broadly than the ADA. For example, the definition of service animal is broader under the Fair Housing Act and Air Carrier Access Act, and these acts, including others, may mandate accommodations for emotional-assistance animals. There are also state regulations that may require you to allow your employees with medical conditions and disabilities to bring in their service animal and/or emotional support pets.
If your business is open to the public, it is likely that you must comply with one or more of the laws requiring access by service animals. Figuring out how to accommodate service animals can be difficult, but whatever you do, be sure to keep some hay handy.
—Karl O. Riley, Snell & Wilmer L.L.P., Las Vegas, NV