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SERVICE ANIMALS AND THE ADA

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"If you want a friend in Washington, get a dog." - (Quote often attributed to Harry Truman)

The ADA defines a service dog as "any dog that is 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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition." 

The work or tasks performed by a service animal must be directly related to the individual's disability. The person must have a physical or mental impairment that substantially limits one or more major life activities, and the dog must be specially trained to assist the person with the impairment. Providing protection, emotional support, or companionship do not count as trained tasks under the ADA. The tasks service dogs perform range from leading a blind person, bringing medication in a crisis, or providing balance assistance, to providing tactile stimulation to disrupt an anxiety attack. The task the service dog performs must mitigate the disability.

There is no requirement that service dogs be certified, but they do have to meet certain criteria under the Americans with Disabilities Act (ADA), and a number of states have made it a crime to misrepresent a pet as a service animal. The toughest law is in California, where the maximum penalty is a $1,000 fine and up to six months in jail. While it is possible to obtain a service dog identification or certificate from one of dozens of websites and organizations, none of these is federally recognized by the ADA and they are simply money-making schemes.

Many business owners believe they are not permitted to ask any questions about a service animal and fear they may face allegations of discrimination pursuant to the ADA. While business owners and their employees cannot discriminate against a person with a disability by disallowing a service animal, they may ask two questions: "Is this dog a service dog?" and "What kind of work or tasks does the dog perform?" They may not ask for proof of a person's disability, and they may not ask for proof the dog is a service dog; however, if a discrimination complaint is filed, the individual filing the complaint will be required to provide proof to the court that the animal qualifies as a service dog.

Businesses must make accommodations for service dogs, but there are common sense rules related to public safety and health. Service dogs must be leashed, harnessed, or otherwise tethered, unless doing so would interfere with the particular task they perform. If that is the case, the individual handler must maintain control through voice commands or other means. There is no obligation to let service dogs go anywhere that is off-limits to the general public.

There is a significant distinction between emotional support animals (ESAs) and service dogs, with different legal requirements and protections. ESAs do not have to be dogs, but they must belong to a person with a disability. The owner's doctor makes a determination that the animal is necessary for a person's mental health and writes a prescription stating the pet is necessary. There is no training required of the animal. As such, business owners do not have to make accommodations by allowing the animal into the business. Business owners and their employees should be aware of the ADA's regulation regarding service dogs so they do not infringe on the rights of persons with disabilities and risk a discrimination complaint, but there are limits to what they must accommodate.

Under the ADA, employers must provide reasonable accommodations to employees with disabilities, unless it would impose an undue hardship on the employer. Allowing an employee to bring a dog to work can qualify as a reasonable accommodation, but only if the dog qualifies as a "service animal" under the ADA. Therefore, an employee with a disability does not have an automatic right to have his or her service animal in the workplace. As with any request for a reasonable accommodation, a process should be undertaken with the employee to determine which accommodations, if any, would be appropriate and not cause undue hardship for the employer.

Can another employee's fear of or allergy to the service animal constitute a disability under the ADA for which an accommodation can be sought? Employers should keep in mind that the accommodations for all employees with disabilities only have to be reasonable. Banning all service dogs from a place of employment would not likely be seen as "reasonable." A more reasonable accommodation such as air cleaners, private offices, or telework would likely be found more reasonable than banning all service dogs.

For additional information, go to the U.S. Department of Justice Civil Rights Division Disability Rights Section for FAQs about service animals and the ADA. https://www.ada.gov/regs2010/service_animal_qa.html

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