Seyfarth Synopsis:  Is it a service animal or an emotional support animal?  Do I have to allow both?  How to tell one from the other, and the rules that apply.

We get a lot of questions about service and emotional support animals.  It’s obvious that there is a lot of confusion out there.  Here is how to tell one from the other, and the rules that apply to both.

Public Accommodations.  Under Title III of the federal Americans with Disabilities Act (ADA) and virtually all state laws, a service animal is an animal that has been trained to perform work or tasks for the benefit of a person with a disability.  Emotional support animals—also called therapy or comfort animals—have not been trained to perform work or tasks.  Instead, they provide a benefit just by being present.  Public accommodations (e.g. restaurants, theatres, stores, health care facilities), are allowed to ask only two questions to determine if an animal is a service animal:  (1) Do you need the animal because of a disability? and (2) What work or tasks has this animal been trained to perform?  The second question is the key:  If the person is unable to identify the work or tasks that the animal has been trained to perform, then the animal is not a service animal.

Under the ADA, only a dog or miniature horse (no, we are not joking) can serve as service animals.  The ADA requires public accommodations to allow service animals to accompany their owners anywhere the owners can go, although the Department of Justice made clear a few years ago that they can be prohibited from swimming pools (in the water) as well as shopping carts.  The ADA provides no protection for emotional support animals in public accommodations.  The Department of Justice has a very helpful FAQ about service animals, and the Washington Post recently published a story that is also useful.

When developing policies, public accommodations must comply with both federal and state law, and some states provide greater protections.  For example, in some states, any type of animal (not limited to dogs and miniature horses) can be a service animal provided it has been trained to perform work or tasks.  Some states may provide protection for emotional support animals as well.  Virtually all states protect service animals in training, which are not addressed by the ADA.  Thus, public accommodations must tailor their policies to account for state requirements, or adopt a policy that will comport with the broadest of all state laws nationwide.

Housing.  The federal Fair Housing Act (FHA) applies to residential facilities and provides protection for emotional support animals in addition to service animals.  Thus, property managers, condo associations, co-op boards, and homeowners associations need to keep this in mind when dealing with requests from homeowners and tenants relating to these types of animals.  The Department of Housing and Urban Development’s most recent guidance on this topic is here.

Airplanes.  The Air Carrier Access Act (ACAA), not the ADA, governs accommodations for people with disabilities on airplanes.  The Department of Transportation (DOT) is responsible for enforcing the ACAA rules.  Historically, the rules have required accommodations for emotional support animals, but recent abuses of the rules by passengers seeking to bring all manner of animals such as peacocks and pigs onto planes has caused the DOT to revisit this issue in a pending rulemaking.

Compliance Strategy.  All businesses should have a written policy concerning service and emotional support animals that takes into account federal law, state law, the nature of the business, and the ability of employees to make decisions about whether an animal should be allowed onto the premises.  Having a written policy and training employees on the policy is key to ensuring that they know how to respond when one of these animals shows up on the premises.

Seyfarth Shaw Synopsis: Effective December 18, 2017, New York became the latest state to enact a law cracking down on fake service animals.

New York recently joined an increasing number of states that have passed laws aimed at curbing abuse of laws and regulations designed to ensure that individuals with disabilities can be accompanied by their service animals in places of public accommodation and other settings. On December 18, 2017, New York State Governor Andrew Cuomo signed into law a bill that, among other things, makes it unlawful to knowingly apply a false or improper identification tag designating a service, emotional support, or therapy dog. In signing the bill, Gov. Cuomo noted an increasingly important role therapy dogs play in supporting individuals with diseases such as anxiety and PTSD, and also their role in assisting the ill and elderly. Authority to enforce the new law is vested with each municipality’s dog control officer. Violators will face a fine of up to $100, up to 15 days of jail time, or both.

Service animal registrations, vests, and any other means which identify service animals do not have any legal significance, according to the DOJ, and may be easily obtained online. And, as we have previously reported, businesses may only ask a handful of permitted questions to assess whether they must admit a purported service animal. Businesses should be aware of and train their employees to comply with the ADA’s, and any applicable state and local laws’, service animal requirements. Although it may be tempting to undertake more aggressive measures to ferret out cases of service animal fraud, new laws in places like New York do not relieve businesses of their federal obligations to adhere to a protocol for addressing service animal issues. Under DOJ guidance, businesses cannot, for example, ask about the nature of a person’s disability who is accompanied by a purported service animal, or ask for a demonstration of what tasks the animal performs. Therefore, businesses should nonetheless remain vigilant in complying with their obligations to ensure access for those individuals with a genuine need for these animals.

Other states such as Colorado, Maine, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Texas, Utah, and Virginia have similar laws or regulations prohibiting the misrepresentation of service animals. This trend has recently made national news. These state laws will hopefully discourage those who seek to take advantage of disability laws for an improper purpose, and empower authorities in dealing appropriately with cases of abuse.

Over the past few weeks, our Title III Specialty Team contributed to the following pieces:

The site interviewed Seyfarth’s ADA Title III Team leader Minh Vu for an article about a pending lawsuit brought by an advocacy organization for the deaf against seven Hollywood movie studios for failing to provide closed captioning for lyrics of songs in motion pictures. The suit highlights the uncertain legal landscape on the digital frontier.

Lodging industry publication Hotel News Now featured Minh Vu’s practical advice on some thorny service animal questions that hotels often face. Service animal issues are not new, but businesses continue to grapple with them every day.

Last, but not least, a Cato Institute blog post recently referenced our post “Justice Department Delays Web Accessibility Regulations For At Least Three More Years, Leaving Businesses in Turmoil.”

We appreciate being your resource for ADA Title III disability access developments, and will continue to keep you updated.

(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

Blind woman and a guide dogBy Kristen Verrastro and Andrew McNaught

Recently, a Federal court in Northern California denied Uber Technologies, Inc.’s request to dismiss an access lawsuit. The plaintiffs, National Federation of the Blind of California (“NFBC”) and individual blind members with guide dogs, filed an ADA lawsuit alleging Uber-X drivers committed various forms of discrimination, including refusing to transport blind riders with their service animals.

For example, one blind member of NFBC alleged an Uber-X driver pulled up to the curb; yelled “no dogs;” and then cursed at him before taking off without the NFBC member in the driver’s vehicle. The complaint also alleges that Uber-X drivers have mishandled guide dogs, in one instance even forcing a guide dog into the closed trunk of a sedan before transporting the blind rider. When the blind rider realized where the Uber-X driver placed her dog, she pleaded with the driver, who refused to pull over so the rider could remove the dog from the trunk.

Below, we discuss the arguments considered by the Court regarding Uber’s motion to dismiss. The Court ultimately determined that: (1) the plaintiffs had standing under the ADA; and (2) Uber may be subject to the ADA, potentially as a place of “public accommodation.”

Plaintiffs’ Standing under the ADA

Uber argued that the plaintiffs did not have standing to bring the lawsuit because, among other state law arguments: (1) one plaintiff did not have standing under the ADA’s deterrent effect doctrine; and (2) another plaintiff did not have standing as to the likelihood of future harm under the ADA.

The Court rejected Uber’s arguments. In finding that plaintiffs have standing under the ADA, the Court noted that the plaintiffs shouldn’t have to engage in a “futile” attempt to access services when they: (1) have knowledge that Uber has refused service to passengers with service animals; and (2) believe there is a likelihood such refusals will continue. Specifically, the Court said that “the ADA directs this Court to relax its standard for injury in fact in order to discourage both piecemeal litigation and futile attempts at access” when plaintiffs have actual notice of the alleged discriminatory practice and are in fact deterred from attempting access.

The Court also granted NFBC associational standing to bring suit under the ADA on behalf of its members.

Uber May Be Subject to the ADA Continue Reading Federal Lawsuit Challenging Uber X’s Exclusion of Service Animals Shifts into Discovery

As we start 2015, the recent activity and interest surrounding the issue of service animals under Title III of the ADA show no signs of abating.  Customers and patrons of retailers and other public accommodations continue to test the boundaries of the federal statute and the applicable regulations, as well as those of state statutes, by bringing service animals (some legitimate and some decidedly not) into places of public accommodation.  There appears to be a great deal of ongoing misinformation and misunderstanding about the these issues, which continue to present legal and practical headaches and minefields for places of public accommodation, as well as for employers under Title I of the ADA and analogous state statutes. Generally, the service animals topic continues to resonate within not only the legal community, but also in popular culture.

In December, the Society for Human Resources Management, the leading national Human Resources professional organization, published an article about service animals under Titles III and Title I of the ADA after obtaining insights from various sources, including one of our own ADA Title III team partners in California, Andrew M. McNaught. That article also cited to a widely-read, and very amusing and informative piece on the topic published by the New Yorker Magazine in October 2014.

In this space, we have previously reported on the myriad of issues surrounding service animals in places of public accommodation under Title III of the ADA.   You can be sure we will continue to keep our readers updated on relevant developments in this area as we move forward in 2015.

Edited by Minh N. Vu and Kristina M. Launey

By Christie Jackson

USA Today recently reported that the number of passengers traveling on airplanes with service animals is increasing.  The article explores possible reasons for this increase.  Perhaps – innocently and legitimately – there are more individuals with disabilities flying the friendly skies with their service animals than ever before.  Or, as USA Today suspects, not all are legitimate service animals.  Ferreting out service animal fraud is an ongoing issue, which we have previously covered.

What could be motivating these air passengers’ fraud?  Well, money is always an issue.  According to the article, airlines charge as much as $549 for non-service animals, while there is no charge for service animals.  Or, consistent with the increasing trend of animals in strollers, purses, and just about everywhere their owners go, pet lovers just cannot bear the idea of leaving Fido in the cargo hold of the plane.

What law governs this?  The Air Carrier Access Act (ACA) governs the rights of passengers with disabilities traveling on planes.  The protections the ACA provides for individuals who have service or emotional support animals are broader than the Americans with Disabilities Act (ADA).  Under the ACA, virtually any type of animal can be a service animal.  The ACA also protects emotional support animals for recognized psychiatric conditions with documentation from a licensed mental health professional.  The ACA requires that airlines allow these animals on planes with their owners and prohibits airlines from charging a fee for the animals.  In contrast, the ADA only provides protection for dogs and miniature horses that are actually trained to perform work or tasks for a person with a disability. Unlike airlines covered by the ACA, public accommodations covered by the ADA do not have to allow onto their premises emotional support animals that merely make their owners feel better by their presence–even if the owners have a recognized psychiatric condition.

Passengers traveling with service or emotional support animals should note, however, that some destinations such as Hawaii and the UK may have additional rules concerning animals entering those areas.

Regardless of whether the animals on planes are legitimate service or emotional support animals, expect to see more furry friends on your next flight.

Edited by Minh Vu and Kristina Launey

If your business opens its doors to the public, it has an obligation under the Americans with Disabilities Act (ADA) and other laws to make its goods and services accessible to individuals with disabilities.  This includes allowing service animals access.  Places of public accommodation are experiencing increasing difficulty navigating the sometimes complex interactions with customers surrounding service animals, and the legislatures of at least two very large states are taking notice.

Please join Seyfarth Shaw’s ADA Title III team members Andrew McNaught and Kristen Verrastro on Tuesday April 29, 2014 at 12:00 p.m. Central, for an insightful discussion on the rules and issues surrounding service animal access, including:

  • What is a service animal?
  • What questions are you permitted to ask to ascertain if an animal is a service animal?
  • What are your obligations with regard to service animals’ access to your facility?
  • What restrictions can you place on service animals?
  • When may a service animal be excluded from the premises?
  • How should you respond to complaints about service animals from customers?

Register here. 

By John W. Egan

From our experience, businesses often must deal with customers and guests who claim that their pets or comfort animals are “service animals” to avoid “no animal” rules or extra charges for pets.  A recent decision from the United States District Court for the Eastern District of California serves as a reminder that businesses do have a mechanism for ferreting out service animal imposters.

Under the ADA Title III regulations issued by the Department of Justice (DOJ), there are two questions that a business or other public accommodation may ask to determine if an animal qualifies as a service animal:

(1) Is the animal required because of a disability?; and

(2) What work or task has the animal been trained to perform?

However, a business may not ask these two questions when it is readily apparent that the service animal is performing a task for a patron with a disability (for example, a dog that is observed guiding a person who is blind or has low vision). Also off limits are questions about the nature or extent of a patron’s disability and requests for proof of service animal training, licensing or certification. 

The public accommodation in Lerma v. California Exposition and State Fair et alwas well-served by this protocol.  The Plaintiff in Lerma tried to enter a fair in Sacramento, California with a cocker spaniel puppy.  When a police officer employed by the venue approached her, Plaintiff claimed the puppy was a service animal and demanded to enter the park.  The officer asked her what task the dog had been trained to perform.  Plaintiff reportedly replied, “all I have to tell you is it’s a service dog and I’m going to sue you.”  When the officer asked Plaintiff how she would handle the puppy’s need to relieve itself, or whether it was housebroken, Plaintiff again refused to answer the officer’s questions and threatened legal action.  After this line of questioning, the officer told Plaintiff that because he could not determine whether the dog qualified as a service animal under the ADA, it should be removed from the premises.  The Plaintiff subsequently filed a lawsuit alleging that this conduct violated the ADA.

At her deposition, Plaintiff admitted that the dog was not trained to assist her with a disability.  In fact, the only training the dog received was housetraining and general obedience training.  Plaintiff testified at deposition that she “needed the dog to be able to get through the day.” 

Considering these facts, Magistrate Judge Gregory G. Hollows ruled that Plaintiff’s dog was not a service animal under the ADA and recommended the complete dismissal of this action.  (Note that while the Court’s discussion was limited to the ADA, the definition of a service animal under other federal laws such as the Fair Housing Act and the Air Carrier Access Act, as well as some State and local laws, are broader than the ADA’s definition and should be always be consulted.)  

The Court held that Plaintiff’s dog was not an ADA service animal because it was not trained to perform tasks that would benefit a person with a disability.  Also, the Court observed that Plaintiff’s reasons for having the dog with her – – for emotional support and comfort – – were expressly excluded from the definition of a service animal under ADA regulations.  (See our prior blog on service animals here, and note that while emotional support and comfort are not qualifying functions for an ADA service animal, a person with a psychological disability can have a service animal.  Dogs trained to, for example, calm a person with Post Traumatic Stress Disorder during an anxiety attack, or remind a person with a mental illness to take prescribed medications, may qualify as service animals under the ADA.)

The Court also determined that the police officer acted properly in handling the interaction with Plaintiff.  First, he asked one of the two permissible questions – – what task had the dog been trained to perform.  Second, he asked whether the animal was housebroken.  The ADA permits businesses to exclude even bona fide service animals if they are not housebroken, or if they are out-of-control.  Third, the officer told Plaintiff that she could return and enter the park without the animal.  The regulations require that after properly excluding an animal, a business must provide the individual with a disability with an opportunity to obtain its goods or service without the animal’s presence.

As the Lerma case illustrates, using the questions allowed under the ADA can be an effective tool for public accommodations to ferret out service animal imposters and ensure individuals with legitimate working service animals are afforded equal access under the ADA.

Edited by Minh N. Vu and Kristina M. Launey

By Minh N. Vu

Must restaurants, supermarkets, hotels, and other public accommodations allow individuals with disabilities to be accompanied by miniature horses that perform work or tasks related to their disabilities?  In new ADA Title III regulations published on September 15, 2010, the Department of Justice (DOJ) said yes, subject to a few limitations.  According to DOJ, service miniature horses are an alterative to for people allergic to dogs, they live longer, and can be housebroken just like a dog.  Although the miniature horse rule usually surprises people when they first learn about it, it went into effect on March 15, 2011 without much controversy.  Earlier this year, miniature horses used as service animals received media attention after a disabled plaintiff sued two California retail stores that allegedly would not let him in with his miniature horse.

On May 10, 2012, the House passed an amendment to an appropriations bill (H.R. 5326) that bars the use of appropriated funds to implement the miniature horse rule.  It is unclear if the amendment will become law but we will certainly let you know as soon as we hear.  In the meantime, you can read more about the amendment from its author, Rep. Jason Chaffetz, and DisabilityLaw blogger reaction here.