(Photo) KangarooBy Kevin Fritz

We recently came across a news story that inspired us to draft this post: A Wisconsin woman and a kangaroo enter a restaurant. (If that isn’t a great joke intro, we don’t know what is.) Another customer calls the police to report the animal, but the woman claims that her kangaroo is a service animal and produces a note from her doctor validating her assertion. The police ask her to leave, and she and baby Joey exit in anger. Even though in this scenario no action was taken, the issue remains far from moot. Because what qualifies as a service animal under the law – and how businesses can be best prepared in situations such as these – continues to be confusing and, thus, a popular area for discussion.

In 2010, the US Department of Justice published revised final regulations implementing Title III of the ADA (which applies to public accommodations and commercial facilities). Under this federal law, service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with PTSD during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or tasks a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

In addition to the provisions about service dogs, the Department’s revised ADA regulations have a separate provision about miniature horses. Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. Specifically, a public entity or private business must allow a person with a disability to bring a miniature horse on the premises as long as it has been individually trained to do work or perform tasks for the benefit of the individual with a disability, and as long as the facility can accommodate the miniature horse’s type, size, and weight.   As a practical matter, miniature horses that perform work or tasks for a person with a disability get the same treatment as canine service animals.

That said, some state and local laws define “service animal” more broadly than the ADA. In Wisconsin, for example, “service animal” means a “guide dog, signal dog, or other animal that is individually trained or is being trained to do work or perform tasks for the benefit of a person with a disability, including the work or task of guiding a person with impaired vision, alerting a person with impaired hearing to intruders or sound, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” Wisc. Stat. §106.52(1)(fm).

So, while the only dogs and miniature horses must be accommodated as service animals under federal law, other types of animals may be service animals under state law if they are trained to perform work or tasks for an individual with a disability.

Back to our real life scenario: Is the baby Joey a service animal? According to the ADA, definitely not. But in Wisconsin, the answer is less obvious. If it could be proven that the kangaroo performs work or tasks for the woman, and that she has a disability, she may be able to successfully bring a claim for disability discrimination against the restaurant under state law.

To protect against lawsuits, businesses will do well to recognize the basic federal floor under the ADA, and review applicable state laws and local ordinances to make sure they don’t provide greater protections. In addition, state laws often protect service animals in training that are with their licensed trainers – who might not be persons with disabilities, serving as an important reminder that you cannot judge someone based on appearance.

To that end, when a person with a service animal enters a public facility or place of public accommodation, the person cannot be asked about the nature or extent of his disability. The ADA allows only two questions to be asked: Is the animal required because of a disability? AND What work or task has the animal been trained to perform?

These questions should not be asked, however, if the animal’s service tasks are obvious.

These questions elicit the key characteristics of a service animal: (1) It has been trained to assist a person with a disability; and (2) it performs work or tasks for a person with a disability.   If the animal performs no work or tasks, it is not a service animal.

Kevin Fritz is an Associate in the Chicago office of Seyfarth Shaw LLP

Edited by Minh Vu and Kristina Launey