A Guide to Allowance of Emotional-Support and Service Animals

This article originally appeared in Goldberg Segalla’s Professional Liability Matters. Read the issue here.

Generally, the world has become increasingly pet-friendly in recent years, with more and more businesses such as restaurants and stores welcoming customers with their furry friends. In fact, some car dealership owners,aware that many pet owners will take their dog on a test drive or bring them along when getting their cars serviced, have designed pet-friendly dealerships. A few dealerships with the requisite acre age have even gone so far as to build dog parks for the exclusive use of their customers. Other more modest examples of the pet-friendly dealership include dealerships that provide a dog bed, animal treats, and/or water for their customers’ pets. At least one car dealership extends a welcome, not only to its customers’pets, but also its employees’ pets, making every day a“bring-your-dog-to-work day.” Of course, on the other end of the spectrum are more traditional dealerships that have never even considered the idea of making their dealerships “pet-friendly.”

The use of service animals and emotional support animals has become more widespread in recent years as well. However,whether you are among the more vanguard pet-friendly dealerships,or the more traditional “no pets” allowed dealerships,everyone must be sensitive to accommodations which must be made for service animals and/ or emotional support animals and be mindful that these animals are not pets. Service animals are trained to perform tasks for disabled individuals, while emotional support animals, although not as specifically trained, provide emotional comfort to individuals who need it.

Technical background as to the legal requirements along with some best practices for accommodating customers with service animals and employees who require service animals or emotional support animals:

THE ADA REGULATES THE USE OF SERVICE ANIMALS AND SUPPORT ANIMALS IN A DEALERSHIP

Required accommodations for service animals and emotional support animals in public places, including the workplace, are governed by federal, state, and local laws. At the federal level, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., is the law that governs the necessary accommodations to be made for service animals and emotional support animals in a car dealership.

The ADA is divided into three titles, of which two apply to dealerships: Title I, which prohibits disability discrimination in employment;and Title III, which prohibits disability discrimination in places of public accommodation.

ACCOMMODATING YOUR CUSTOMERS

We will start with Title III, which governs the accommodations that must be made for car dealership customers with service animals.

The term service animal under Title III of the ADA is defined 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.”The ADA guidelines as revised in 2010 also include miniature horses within the definition of service animals. The work or task a service animal has been trained to provide must “directly relate to the person’s disability.” Examples of service animals and specific tasks they are trained to perform include:

• Seeing-eye dog which assists or guides blind persons
• Hearing or signal dog which alerts a hard of hearing person to a sound
• Psychiatric service dog who can sense when a person with PTSD is about to have an anxiety attack and can take specific action to help avoid the attack or lessen the impact
• A SSigDOG trained to respond on behalf of an autistic child playing out-doors who does not otherwise respond to his name when the parents want to call the child home
• A seizure response dog that barks to alert caregivers of a person with epilepsy having a seizure, or that can activate a special alarm

Interestingly, emotional support animals are carved out of the definition of service animal because they are not trained to perform a specific job or task related to a person’s disability. Given that emotional support animals do not qualify as service animals under Title III of the ADA, car dealerships are not required to permit customers with emotional support pets into their stores. Accordingly, you may not necessarily have to welcome into your showroom the famous emotional support peacock that one airline had to contend with. However, you should be aware of any local civil rights laws which may have broader requirements than the ADA and which may require public accommodations to permit emotional support animals or animals beyond dogs and miniature horses.

If you are hesitant about permitting customers to bring animals they claim are service animals onto the premises, and wish to verify that an animal is indeed a service animal, be aware that the ADA permits only two questions if the animal’s service is not obvious:

• Is the dog or miniature horse a service animal required because of a disability
• What work or task has the animal been trained to perform?

All other inquiries are prohibited, so do not ask:

• About the person’s disability
• For medical documentation
• For a special identification card or other proof that the animal has been certified, trained or licensed as a service animal
• For a demonstration of task

WHERE MUST SERVICE ANIMALS BE ALLOWED?

Generally, you must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go. People with disabilities who use service animals cannot be isolated from other patrons, treated less favorably than other patrons, or charged fees that are not charged to other patrons without animals. So, if a business requires a deposit or fee to be paid by patrons with pets, it must waive the charge for service animals.

One dealership owner raised concerns about what to do if other customers are allergic to the service animal. The answer is that an accommodation must be provided to both parties (the dealership cannot deny access or refuse service because of allergies or fear of dogs). For example, each party can be assigned to different locations within the same room. However, the particular dealership in question has only one small waiting room – what to do then? In that case, let’s think outside the box. Perhaps just move some chairs to an area in the showroom. Or possibly have the party with allergies wait in some-one’s office and offer them a coffee for any inconvenience.

This same dealership owner shared a funny anecdote about his wife, who was thrilled to have found a pet-friendly liquor store where her beloved puppy could accompany her while she did some spirited shopping. The first time in the store, her puppy proceeded to pee on some wine bottles that were conveniently located on a bottom shelf for this purpose. Fortunately, the store owners were very friendly and understanding. This anecdote may raise the eyebrows of some dealership owners concerned about their leather interior showroom cars. But, they shouldn’t be too concerned. The ADA does impose some specific requirements of service animals and their handlers, including that:

Based on the foregoing requirements, you can politely request that a service animal be excluded or removed from the premises if:

• The handler does not effectively control the animal and the animal is running away from the handler, jumping on other customers, or repeatedly barking without provocation
• The service animal is clearly not house-broken (as was the case of the adorable puppy in the liquor store)
• But even when there is a legitimate reason to ask that a service animal be removed, car dealership staff must be sure to offer the person with the disability the opportunity to obtain goods or services without the service animal’s presence
• The service animal be housebroken―entities are not required to provide care, supervision, or cleaning after the animal
• The service animal’s handler keep the service animal under control, and that the service animal be harnessed, leashed, or tethered, unless devices interfere with animal’s work or the disability prevents use of the devices (under those circumstances, voice, signal or other effective control can be used)

The Service Animal should be vaccinated in accordance with local animal control or public health requirements Based on the foregoing requirements, you can politely request that a service animal be excluded or removed from the premises if:

• The handler does not effectively control the animal and the animal is running away from the handler, jumping on other customers, or repeatedly barking without provocation
• The service animal is clearly not house-broken (as was the case of the adorable puppy in the liquor store)

But even when there is a legitimate reason to ask that a service animal be removed, car dealership staff must be sure to offer the person with the disability the opportunity to obtain goods or services without the service animal’s presence.

REASONABLE ACCOMMODATIONS FOR YOUR EMPLOYEES

Under Title I of the ADA, employers must provide reasonable accommodation to employees with disabilities unless the accommodation would pose an undue hardship to the employer. The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities … a record of such an impairment; or being regarded as having such an impairment[.]”

Under Title I, a reasonable accommodation “may include making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

Requests to bring a service animal or an emotional support animal must be processed like any other request for a reasonable accommodation and you must engage in the interactive process to determine if allowing the animal is a reasonable accommodation that is required to assist the disabled employee or applicant to perform an essential job function, and if so whether the reasonable accommodation will impose an undue hardship. Although service animals are not addressed in Title I and the Equal Employment Opportunity Commission (EEOC) does not have a specific regulation on service animals, permitting a service animal or an emotional support animal to accompany a disabled individual to work is generally considered to be a reasonable accommodation, which in this context is essentially a modification to a policy with a prohibition on bringing animals to work (if you are the car dealership where every day is “bring your pet to work day,” then you must be sure to extend the same privileges to disabled individuals with service animals without having to undergo the reasonable accommodation process).

Because Title I does not define service animals, there is no limitation on what may qualify as a service animal. Thus, unlike places of public accommodation, employers are not permitted to limit service animals to dogs or miniature horses. And, while not automatically required to permit them at work, you must consider service animals of any species as well as emotional support animals of any species as a reasonable accommodation for employees with disabilities unless doing so would cause you as the employer to suffer an undue hardship. In addition to simply allowing the employee with the disability to bring the animal to work, common reasonable accommodations for disabled employees who use service animals or emotional support animals include:

• Permitting the employee leave to participate in individualized service animal training
• Providing the employee with a private/enclosed workspace
• Designating an area where the employee can attend to the service animal’s basic needs, such as eating or bodily functions and allowing the employee to take periodic breaks to care for the service animal’s basic needs
• Providing a designated area that the service animal can occupy until the employee’s shift ends (if the employee only requires the service animal to travel to and from work)

If the employee’s disability is not obvious, you are permitted to ask for reasonable documentation that an accommodation is needed. You may also request documentation or demonstration that the service animal is trained, is housebroken and will behave appropriately and not disrupt the workplace. However, you may not insist that such documentation come from a medical professional and should accept documentation from other sources, including service animal trainers. This is particularly true when considering re-quests for emotional support animals, in which case documentation from psychologists, social workers, and treating clinicians, among others, is deemed acceptable.

If the use of a service animal is the accommodation that an employee requests and prefers, you should NOT ask employees requesting permission to use a service animal to use a substitute accommodation, unless the service animal would pose an undue hardship.

Similar to how you might address customer concerns about allergies, there are many potential ways for you to address these concerns among coworkers, including:

• Allowing the employees to work in different areas of the building or in private offices or to travel on different paths in the building
• Flexible scheduling so that the employees do not work at the same time
• Using portable air purifiers or adding HEPA filters to the existing ventilation system
• Regularly cleaning the work area, including carpets and window treatments
• Asking the disabled employee to use dander-care products regularly when cleaning the service animal
• Asking the disable employee if he/ she can use alternative support during times when both employees must attend the same meeting
• Creating a plan so that the employees do not use common areas such as break rooms at the same hour
• Arranging alternatives to in-person communication, such
  as teleworking
• Allowing allergic coworkers to take periodic rest breaks if needed to take medication
• Similar arrangements can be made for addressing
  animal phobias

It is a good idea to ask the employee what his/her expectations are for how others should interact with the service animal or emotional support animal, but the following are generally accepted guidelines:

• Address the person, not the animal
• Treat the employee handler with respect
• Don’t ask the employee handler about his/her disability
• Don’t ask personal questions about the service animal or emotional support animal such as name, breed, or tasks it can perform or ask for a demonstration
• Remember that the service animals are providing a service and are not pets, so do not distract the animal, play with the animal, or try to pet or feed the animal

It is good to always keep in mind that service animals and emotional support animals add value to the employment setting as they promote the effective job performance of disabled employees.

Professional Liability Magazine, a collaborative effort of Goldberg Segalla’s Management and Professional Liability Practice Group, examines the latest best practices, emerging developments, and influential court decisions impacting the defense of professional service providers. Read our latest issue here.