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Gone to the Dogs: Rules on Service Animals to Become Stricter

by James J. McDonald, Jr., managing partner, Fisher & Phillips,
LLP

Regulations issued in 1991 following the enactment of the
Americans with
Disabilities Act required that public accommodations (which
include
restaurants, hotels, retail establishments, theaters, and concert
halls)
modify their policies, practices, or procedures to permit the use
of a
service animal by an individual with a disability.

Essentially this means that service animals accompanying persons
with
disabilities have to be admitted to establishments with policies
that
otherwise exclude pets or other animals.

When the ADA was enacted, most service animals were "seeing-eye"
dogs that
assisted blind or sight-impaired persons. In most cases, these
dogs were
highly trained and, because of their extensive training, were not
likely to
create a nuisance or a sanitary problem.

Over time, however, a variety of species came to be characterized
by their
owners as service animals, including pigs, horses, monkeys,
snakes, lizards,

birds, and rodents. Also, dogs and other animals that merely
provide
emotional comfort to their owners also have been characterized as
service
animals.

This proliferation of creatures claimed to be service animals has
posed
obvious problems for many restaurants and hotels in terms of
safety,
sanitation, and disturbance of other guests. Until now, however,
proprietors

were largely powerless to bar these types of animals from their
establishments.

The U.S. Department of Justice has issued new regulations
effective March
15, 2011, however, which will substantially limit the types of
animals that
will qualify as service animals under the ADA.

First, only dogs (and miniature horses in some cases) will
qualify as
service animals under the new regulations. "Other species of
animals,
whether wild or domestic, trained or untrained," will not
qualify. The new
regulations, however, do not place limits on breed or size of
dog.

Second, the dog must be "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
regulations go on to state that the work or tasks performed by
the service
animal must be directly related to the handler's disability.
Examples of
work or tasks set forth in the regulations include:

a.. Assisting sight-impaired persons with navigation or other
tasks
b.. Alerting hearing-impaired persons to the presence of people
or sounds
c.. Providing nonviolent protection or rescue work
d.. Pulling a wheelchair
e.. Assisting an individual during a seizure
f.. Alerting an individual to the presence of allergens
g.. Retrieving items such as medicine or the telephone
h.. Providing physical support and assistance with balance and
stability
to individuals with mobility impairments
i.. Helping persons with psychiatric and neurological
disabilities by
preventing or interrupting impulsive or destructive behaviors
Under the new regulations, the mere "provision of emotional
support,
well-being, comfort, or companionship does not constitute work or
tasks" for

purposes of the definition of service animal. Thus, animals that
provide
only comfort or emotional support for their owners will no longer
qualify as

service animals.

For a dog to qualify as a service animal to an owner with a
psychiatric
disability under the new regulations, the dog must be trained to
perform
specific work or tasks. Examples given in the guidance
accompanying the new
regulations of tasks performed by psychiatric service animals
include
reminding the handler to take medicine, providing safety checks
or room
searches for persons with posttraumatic stress disorder,
interrupting
self-mutilation, and removing disoriented individuals from
dangerous
situations.

The guidance also states that a dog that is used to "ground" a
person with a

psychiatric disorder will qualify as a service animal if the dog
has been
trained: (1) to recognize that a person is about to have a
psychiatric
episode and (2) to respond by nudging, barking or removing the
person to a
safe location until the episode subsides.

The new regulations additionally clarify that "attack dogs"
trained to
provide aggressive protection of their owners will not qualify as
service
animals. The crime-deterrent effect of a dog's presence, by
itself, does not

qualify as "work" or "tasks" for purposes of the service animal
definition.

The new regulations also formalize prior Justice Department
technical
assistance addressing the use and handling of service animals.
The
regulations provide that a public accommodation may ask an
individual with a

disability to remove a service animal from the premises if the
animal is not

housebroken, or if the animal is out of control, and the animal's
handler
does not take effective action to control it. (Ordinarily, the
regulations
state, a service animal shall have a harness, leash, or other
tether, unless

the person with a disability is unable to use a harness, leash,
or tether or

the use of such a device would interfere with the animal's
ability to
perform its work or tasks.) If a service animal is removed for
any of these
reasons, the person with a disability must still be permitted to
access the
establishment's goods, services, or accommodations without the
animal being
present.

The regulations also confirm that a public accommodation is not
responsible
for the care or supervision of a service animal.

The regulations provide that a public accommodation may not ask
about the
nature or extent of a person's disability, but that it generally
may make
two inquiries to determine whether an animal qualifies as a
service animal;
it may ask: (1) if the animal is required because of a
disability, and (2)
what work or task the animal has been trained to perform. These
inquiries
may not be made, however, when it is readily apparent that the
animal is a
service animal, such as where a guide dog is guiding a blind
person or a dog

is pulling a wheelchair.

Furthermore, a public accommodation may not require
documentation, such as
proof that the animal has been certified, trained, or licensed as
a service
animal. Nor may a public accommodation require a person with a
disability to

pay a surcharge for a service animal, even if it applies such a
surcharge
for pets.

These regulations will not apply to landlords or airlines, which
are
governed by the Fair Housing Act and the Air Carrier Access Act,
respectively. It is also not yet clear that these regulations,
and
particularly the definition of a service animal, will be applied
by courts
to cases brought under Title I of the ADA which covers
employment.

A good argument may be made, based on existing case law, that a
stricter
standard would apply under Title I. Unlike under Title III, where
a dog must

be allowed onto the premises if it qualifies as a service animal
and does
not leave a mess or cause a serious disturbance, an employee
under Title I
of the ADA is entitled only to such accommodations as are
necessary to
enable him or her to perform the essential functions of the job.

An employee, therefore, will likely need to show that the
presence of a
service animal is needed for the employee to be able to perform
his or her
essential job duties. An animal that provides only comfort or
emotional
support to an employee, but that is not needed in order for the
employee to
be able to work, will not likely qualify as a reasonable
accommodation under

Title I of the ADA.

These new regulations give long-needed clarity to hotels,
restaurants,
retailers, and other public accommodations regarding which
animals must be
allowed as service animals, and under what circumstances. No
longer will
these establishments need to allow patrons to bring exotic,
dangerous,
disruptive, or unsanitary animals with them as purported "service
animals."

James J. McDonald, Jr. is managing partner of the Irvine, Calif.
office of
the national labor and employment law firm Fisher & Phillips LLP
(www.laborlawyers.com).