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.

(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