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SERVICE ANIMALS AND PUBLIC ACCOMODATIONS

What image comes to mind when you hear the term “service animal?” Do you wonder if you – as an employer or business owner – adequately understand the nature of service animals, and the rights and responsibilities that are applicable to both you and the person benefitted by that service animal?

Worldwide, people with disabilities are benefitted using service animals in many ways. From assisting with the activities of daily living to saving life itself, the importance of service animals cannot be understated. Consequently, legal protections are afforded at both the state (NY Civil Rights Law) and federal level (Americans with Disabilities Act, or “ADA”).

A “service animal” under the federal law (Titles II and III of the ADA) “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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.”[1]

Additionally, the ADA has been modified to include individually trained miniature horses as service animals; although the type, size, and weight of the horse are allowed to be considered in determining if the facility can accommodate the miniature horse.[2]

The work or tasks performed by a service animal must be directly related to the individual’s disability.[3] A guide dog for a blind or visually impaired person is a common example. A few other – and perhaps less common – examples are hearing dogs, allergy detection dogs, mobility assistance dogs and diabetic alert dogs.

While many states have adopted laws to expand the definition of “service animal,” New York State follows the definition found in the ADA. The term “service animal” is not to be confused with “emotional support animal” or “comfort animal.”

So, what does this mean for you if you have an employee, customer, or client with a disability who is assisted by a service dog? What if there is a ‘No Pets’ policy in place?

The short answer is that service animals are permitted in public facilities and accommodations for the simple reason that they are not pets. Rather, they are dogs with a very important job to do for their handlers.

As a general rule, the animal must be under the control of its handler by means of a harness, leash, or tether; and must be allowed to accompany the handler to any place in the building or facility “where members of the public, program participants, clients, customers, patrons, or invitees are allowed to go.”[4] Said another way – any place the public is permitted to go, service dogs must also be allowed to go. This includes government buildings, restaurants, private businesses, and museums, as examples.

The only circumstances under which a person with a service dog may be asked to remove the animal is if the “animal is out of control and the animal’s handler does not take effective action to control it: or the animal is not housebroken.”[5]

It is impermissible to question a person with a service animal about the nature of their disability. Only if the nature of the disability is not apparent are two questions allowed. 1) Is the animal required because of a disability? and 2) What work or task has the animal been trained to perform? That’s it. There are no other questions allowed. It is also impermissible to ask for proof of training or registration as a service animal.

The rights of disabled persons utilizing service dogs in public places is protected by law. Improved understanding of both these laws, and the important role service dogs perform for the people whose rights are established by them, will help avoid misunderstandings and improve the quality of life for their handlers.

 

[1] 28 CFR Part 35 §35.104

[2] 28 CFR Part 36 §36.302(9)

[3] 28 CFR Part 35 §35.104

[4] 28 CFR Part 36 §36.302(c)(7)

[5] Id at §36.302(c)(2)(i)-(ii)

This is not intended to be legal advise.  You should contact your attorney to discuss your specific situation.

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William E. Podszus is an Associate at the firm and practices general litigation.
He can be reached at 845-764-9656 and by email.

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