Suppose you hire Kristin Chenoweth to be your new TV show host, and she shows up on the set with her dog Thunder, claiming she needs the dog for emotional support. Must you allow this distraction?
Or suppose her third cousin shows up at your restaurant with Thunder’s twin bearing a “service animal tag,” yapping away and disturbing servers and diners alike. What must you tolerate at your business?
As always, it depends. Let’s start with employees. If she is your employee, must you allow her to bring her dog to work? If an employer is covered by Title I of the Americans with Disabilities Act (ADA — the federal law that applies to private employers with 15 or more employees) or a state or local law barring discrimination on the basis of disability, you’ll need to ask the employee why she wants to bring her dog to work. If the employee requests to bring the dog as an accommodation for a disability, then you’ll have to go through “the interactive process” with the employee to determine whether having the dog at work is an appropriate reasonable accommodation for the employee’s disability.
Keep in mind that an employer covered under Title I of the ADA is not required to accommodate an employee with a disability in the precise manner that the employee requests. It’s up to the employee to show that the accommodation is reasonable. So talk to the employee — identify the limitations resulting from the employee’s disability and how having the dog would address those. If the presence of a dog would be problematic for the employer, the employer should discuss whether there are reasonable alternate accommodations that could provide the same benefit instead of bringing the service dog to work.
Remember that a reasonable accommodation means, among other things, modifications or adjustments to the work environment that enable a qualified employee with a disability to perform the essential functions of the job, or “modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.” 29 C.F.R. § 1630.2(o)(1).
If the employee’s disability and/or the need to use an animal is not obvious, the employer may request the employee to provide reasonable documentation from an appropriate health care professional about the employee’s disability, functional limitations, and the need for a reasonable accommodation. If it turns out that use of an animal is not an appropriate reasonable accommodation, then the employer should continue the interactive process by discussing other possible reasonable accommodations with the employee.
For employers covered under Title I of the ADA, it is crucial to adequately train supervisors and human resource personnel about engaging in the interactive process with an employee with a disability who asks to bring an animal to work.
What if it’s not an employee, but a customer who shows up with a dog?
This is a different inquiry. Is your business covered by Title II or III of the ADA? Title II applies to state and local government services, programs and activities, and Title III applies to public accommodations (businesses that are generally open to the public such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and commercial facilities (such as privately owned, nonresidential facilities such as factories, warehouses, or office buildings), and private entities that offer certain examinations and courses related to educational and occupational certification. Such places are required to modify policies, practices or procedures to allow a “service animal” to accompany an individual with a disability to any place in the building or facility where members of the public, program participants, customers, or clients are permitted. If your business is not covered under Title III or Title II, then your business does not have to allow a service animal into your business facility.
Second, even if your business is covered under Title II or Title III of the ADA, covered entities are not required to allow emotional support animals or therapy dogs into their places of business if they are not “service animals” as defined by the ADA. Under the ADA, a “service animal” means “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.” 28 C.F.R. § 36.104. Entities covered by Title II or Title III of the ADA must also make reasonable modifications in policies to allow individuals with disabilities to use miniature horses if they have been individually trained to do work or perform tasks for individuals with disabilities. (Yes, you read correctly – miniature horses.)
Note, however, that other federal laws, such as the Fair Housing Act and Section 504 of the Rehabilitation Act of 1973 (which bars schools and entities receiving federal financial assistance such as Medicare and Medicaid from discriminating against persons with disabilities), do not exclude emotional support animals from their protection. And here’s another nuance: an employee with a disability may ask to bring an emotional support animal or therapy dog, which does not meet the definition of a “service animal,” to work as an accommodation under Title I of the ADA.
If your business is a covered public accommodation and an individual enters your business facility with a service animal, your employees may ask the individual only two questions and only if it is not obvious what service the animal provides the individual (such as in the case of a dog pulling a person’s wheelchair or guiding an individual who is blind):
- Is the animal required because of a disability?
- What work or task has the animal been trained to perform?
Other questions are off limits. See 28 C.F.R. § 36.302(c). Your employees cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the animal, or ask that the animal demonstrate its ability to perform the work or task.
However, your business is not without some protections. A public accommodation is not required to accommodate an individual with a service animal if, after an appropriate individualized assessment, the public accommodation determines that the individual poses a direct threat to the health or safety of others. 28 C.F.R. § 36.208(a). A public accommodation also does not have to make reasonable modifications in policies, practices, or procedures if the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations. 28 C.F.R. § 36.302(a).
Further, if the service animal is not housebroken or is out of control and the handler does not take effective action to control the service animal, then the individual with a disability may be asked to remove the service animal from the premises, so long as the individual with the disability is provided the opportunity to obtain goods or services from your business without the service animal’s presence.
For employers that are covered under Title II or Title III of the ADA, the key to reducing the risk of liability is properly training employees on how to address customers with service animals. Finally, be aware that state or local laws may grant other protections.
If you continued to be dogged by service animal questions, don’t hesitate to call on your Akerman Labor & Employment attorney.