by Jodi R. Bohr
In recent years, service animals have become the topic of much debate partly because of their expanded use and perceived abuse. If you are confronted with an accommodation request by an employee or a customer who needs a service animal while on you premises, you must handle the situation appropriately and delicately to avoid potential complaints and liability.
Which animals can be service animals?
Title I of the Americans with Disabilities Act (ADA), which addresses disability discrimination by private employers with 15 or more employees, does not explicitly deal with service animals’ access to the workplace. However, regulations related to Title III of the ADA, which applies to “public accommodations,” require that service animals be granted access to all areas of government facilities, businesses, and nonprofit organizations where public access is normally allowed.
The regulations accompanying Title III of the ADA (which covers discrimination in public accommodations) define a service animal 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.” Service animals also can be used to monitor medical conditions such as low blood sugar. Under Title III, service animals are limited to dogs that are individually trained to do work or perform tasks for a person with a disability, but you should check your state’s regulations as some extend protections to other animals.
Reasonable accommodations for employees
Although Title I of the ADA (the provision that applies to private employers with 15 or more employees) does not require employers to allow employees to use service animals, employers are faced with determining whether allowing a disabled employee to use a service animal is a reasonable accommodation. That determination goes along with considering an employee’s accommodation request.
When an employee asks to use a service animal in the workplace, you have the right to request documentation of his need for the service animal just like other accommodations. Also, you may ask him to document or demonstrate that the service animal is trained to help with his medical needs and that the animal will not disrupt the workplace.
Once you grant an employee’s request to bring a service animal to work, a whole host of other issues may arise. While the employee is responsible for caring for the animal, including making sure it is not disruptive and taking it out to relieve itself, you may need to provide the employee with an accommodation to allow him to do so. Engage in an open dialogue with the employee to determine what accommodations are needed to care for the animal. For example, you may need to adjust the employee’s break times or move him closer to an exit.
When customers make the request for service animals
Employers with customers and others on the premises also are faced with accommodating the use of service animals under Title III of the ADA. Consider what might happen when a patron attempts to bring his service animal on the premises but access is denied by an employee. Complaints by patrons against companies related to the accommodation of their service animals have become a hotbed issue. To avoid potential liability, it’s essential that you train all employees to address situations that involve an individual and his service animal.
Businesses must allow service animals to accompany a person with a disability or a service animal in training on the premises where the public is normally allowed to go. The service animal must be trained to perform tasks for the person with a disability, and its work must be related directly to the handler’s disability. The service animal isn’t required to be licensed or certified to be protected under the ADA. The animal must be harnessed unless the harness would interfere with its work; in that case, the handler must maintain effective control of the service animal with her voice or a signal. Check your state’s laws as some limit the types of animals that are considered service animals.
Two questions only
When it isn’t obvious what service the animal provides to the handler, businesses are limited in what inquiries may be made about the handler and the service animal. Employees may ask only two questions:
- Is the service animal required because of a disability?
- What work or task has the service animal been trained to perform?
Further inquiries of the handler are impermissible. Employees may not ask about the person’s disability. Also, they may not request or require medical documentation from the handler or require a special identification card or training documentation for the service animal. Finally, they may not ask that the service animal demonstrate its ability to perform the work or task for which it is trained.
Service animals may be excluded by covered business for limited reasons:
- They aren’t under control;
- They aren’t housebroken; or
- They pose a direct threat to the health or safety of others or fundamentally alter the nature of the public place or the goods, services, or activities provided.
If a legitimate reason to exclude a service animal arises, employees should provide the handler with the opportunity to obtain goods or services without the animal’s presence, if at all possible. Businesses may not exclude service animals or deny access to handlers based on allergies or fear of the service animals by others. The business should accommodate both the handler and the individual with the allergy or fear.
On their own, requests for reasonable accommodations and employees’ love of their animals can be sensitive topics. Taken together, mishandling employees with their service animals could be a precarious situation. When presented with an accommodation request related to a service animal, contact a lawyer to ensure the request is handled properly and you are prepared for issues that may arise as a result of the request. For example, coworkers who are allergic to a service animal may need to be accommodated as well. Additionally, when it comes to customers and their service animals, you easily avoid a legal headache by training your employees on the simple steps of how to handle inquiries with handlers of service animals.
Jodi R. Bohr, an attorney with Gallagher & Kennedy, P.A., practices employment and labor law with an emphasis on litigation, class actions, and HR matters and is a frequent speaker on a wide range of employment law topics. She may be contacted at email@example.com.