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Endangered (Service) Animal Species

Service Dogby Karen McAndrew

As of March 15, 2011, boa constrictors, ferrets, wildebeests, and rabbits are no longer considered “service animals” under the Americans with Disabilities Act (ADA), so assuming the Attorney General’s Office of your state concurs, you will not have to let those animals dine in your restaurant or hang out in a cubicle at your workplace. Don’t exclude miniature horses so quickly, though. If they’re housebroken, you may be required to let them in the house.

Mastering HR: Americans with Disabilities Act (ADA)

A duck walked into a bar . . .
As all of our readers are surely aware, employers and places of public accommodation may be required to allow service animals to accompany employees or patrons with disabilities as a form of “reasonable accommodation” under the Americans with Disabilities Act. Since the ADA regulations were first adopted, however, questions have arisen about what constitutes a legitimate “service animal.” In a number of cases, owners have sought accommodation for all manner of creatures that allegedly have special powers in alleviating their disabling conditions.

A college student claimed, for example, that she needed her ferret to relieve her anxiety disorder (he “soothes me and calms me”), and a seven-foot-long boa constrictor named Redrock was needed to alert its owner to impending seizures. (Redrock apparently would squeeze its owner’s neck to warn him of an oncoming seizure. The other patrons at the McDonald’s the student frequented apparently feared that Redrock squeezing their necks might induce seizures.)

Goats have been claimed to assist people suffering from muscular dystrophy, monkeys can help quadriplegics with simple household chores, parrots supposedly lessen the effects of psychosis, and cats, ducks, pigs, and other four-legged or feathered friends have been identified as “service animals” to guarantee their admission to places of public accommodation and work sites. The U.S. Department of Justice (DOJ) finally tackled these tough questions and last fall issued new definitions and regulations, which became effective March 15.

HR Guide to Employment Law: including a section on the Americans with Disabilities Act

Straight from the horse’s mouth
Apparently, the DOJ received more comments on the proposed changes to the ADA regulations on service animals than it had on almost any other topic. The ferret lobby was large, and many others weighed in in favor of snakes, pigs, and cats. But in the end, the DOJ substantially limited the definition of “service animals” that must be accommodated under the law. The only animal that now qualifies as a service animal is a dog that has been “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 regulation provides examples of specific tasks, such as “assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.”

Specifically excluded from the learned tasks that may qualify a dog as a service animal, however, are the “crime deterrent effects of an animal’s behavior,” so a dog that’s just trained to scare off anyone who appears threatening to its owner is not a “service animal.” Moreover, and perhaps more helpful to employers and others trying to determine what accommodations, if any, must be provided, “the provision of emotional support, well-being, comfort, or companionship [does] not constitute work or tasks for the purposes of this definition.” In other words, dogs that just perform the functions of a pet are merely pets, not service animals. And the definition, by definition, is limited to dogs, so there’s no question that lions, tigers, and snakes have now been excluded.

It still isn’t permissible to ask a patron or employee about the nature of his disability, but it’s OK to ask two other questions. You may ask if the dog is needed to assist with a disability, and you may ask what the dog has been specially trained to do — unless that’s obvious because the dog is, for example, leading a person who is clearly visually impaired. You may require that the dog be on a leash or in a harness, unless the leash or harness would interfere with the services it’s trained to perform. And it’s OK to exclude a dog that isn’t under the control of its owner, isn’t housebroken, or is otherwise disruptive or threatening.

Even if the dog is excluded, however, the owner must be given the opportunity to enter the business without the animal. And a place of public accommodation may not impose a surcharge on a disabled individual for bringing a service animal, even if there’s a surcharge for bringing a pet (for example, when a hotel allows pets but imposes a charge for their stay). Places of public accommodation — and by extension, employers — are required under the regulations to make modifications to their policies, practices, or procedures to allow service dogs and their owners the same access to facilities provided to other customers or employees.

The only animal other than a dog that may qualify as a service animal is a miniature horse. As with a service dog, a miniature horse may qualify only if it is specially trained to provide particular services, is under the owner’s control, and is housebroken.

The regulations governing miniature horses provide a little more leeway than the rules applicable to service dogs. Places of public accommodation are only required to make reasonable modifications to policies and procedures to accommodate a miniature horse and may consider such factors as the horse’s size, weight, and “whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.”

No more Dr. Doolittle

As of March 15, you may tell your employees to leave their cats, ferrets, and monkeys at home, and you may turn away a customer who refuses to remove the boa constrictor from around his neck. You may not exclude a legitimate service dog, however, and you may need to accommodate a well-behaved miniature horse.