Animals as a public accommodation.
A growing public trend is the presence of service animals in places like stores, restaurants, schools, airports and job sites. The basis for this trend is not a new one. It comes from Title III of the Americans with Disabilities Act (ADA) which guarantees people with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” This guarantee from the ADA allows for the use of service animals to help people with disabilities accomplish these public accommodations.
The difference between Service Animals, Emotional Support Animals, and Therapy Animals.
Some employers react negatively to the idea of allowing service animals in the workplace. This might be due to a misunderstanding of the difference between service animals, emotional support animals, and therapy animals. These are entirely different categories of animals.
Service animals are not considered to be pets. These are trained animals that must qualify in two categories to be protected as service animals under the ADA:
- The handler has a specific disability for which the animal can assist; and
- The animal is trained to provide specific assistance to the handler.
In addition, there are limitations to the types of animals that can be considered as a service animal. They must be either a dog or a miniature horse.
These animals aren’t just brought to work to be cute; they are working as well. They work to help the person achieve specific tasks. Service dogs alert the deaf to doorbells, help the blind to cross the street, or even turn on lights for people who have PTSD. Miniature horses are used primarily to pull wheelchairs and to assist their handlers to maintain their balance.
Emotional Support Animals (ESAs), is a much broader category. They can be a variety of animals that are not covered under the ADA, but there are some state protections and other laws that allow them as public accommodations. The emotional support animal is a companion to the handler and provides a benefit for the person’s disability related to emotional disorders and mental health conditions.
Therapy Animals are similar to emotional support animals but are not owned by the patient. These animals work for therapists and physicians and are used in a variety of treatments for social, emotional, and cognitive disabilities. They are typically brought in for short sessions in places like institutions, nursing homes, and prisons to complement other therapy treatments.
The laws related to animals as public accommodations
As stated previously, Title III of the ADA covers specific service animals in the workplace. However, ESAs might also be seen in your community as a variety of other laws covers them. The Department of Transportation (DOT) oversees the Air Carrier Access Act (ACAA) which is a far broader law than the ADA. Luckily, it only applies to air travel. It allows many types of emotional support animals, but fortunately, they have begun some exclusions due to unusual passenger requests. So far, spiders and snakes are known to be banned from serving as ESAs by most airlines.
Emotional Support Animals are also covered under the Federal Housing Act (FHA), which protects renters from being discriminated against by landlords. A landlord cannot refuse to rent to a person who requires an ESA, nor can they refuse to allow a renter to have an ESA if it is for a certified medical condition.
What qualifies an animal to be a service animal?
One common myth about service animals is that they are required to certified and tracked in a national database. This is false. While service animals can be trained for long periods, this is not a requirement. Because of the cost of such training, not everyone can afford it. Those who are not able to qualify for this amount of training for their service animal are still allowed the right to have a service animal. The appearance of vests, tags, and harnesses that identify service animals gives the impression of more legitimacy to service animals, but such items can be purchased online without any certification.
There are some guidelines which service animals must follow:
- The animal must be housebroken (thankfully).
- If the animal does make a mess, the handler is responsible for cleaning up the mess.
- The animal must be under the control of the handler. (Here is where those custom harnesses and leashes show their true usefulness).
- The animal must meet a reasonable size criterion to qualify service animal. The large horse, “Mr. Ed” can safely be denied from a restaurant, but the smaller Shetland Pony, “Little Sebastian,” would likely require access into the store under the ADA.
- Lastly, the animal must be vaccinated in accordance with all state and municipal guidelines.
Handling employee complaints and concerns about service animals
A common concern about having service animals in the workplace is that other workers around the animals may be anxious about the animal or have allergies to the animal. These concerns are not considered to be valid reasons to deny a service animal from the workplace. The burden of managing these concerns is squarely on the shoulders of the employer. They must ensure that proper space and accommodations are given to allow the animal to have space away from anyone who might be affected by allergies or fear of the animal.
If you have an employee who refuses to work around a service animal due to their disability, you may need to engage in an interactive process with both employees and set some realistic expectations for both employees, such as: how the animal is monitored, the employee’s proximity to the animal and the entrances and exits that the animal uses. Since most animal allergies are caused by direct contact with the animal and any shed hair, keeping the animal away from the employee with an allergy may be enough to solve the problem. Something as simple as installing a door specifically for the room where the animal works with their handler might resolve an issue such as this.
Employers have the right to ban pets from being at work. Service animals are not pets. They have a job to do, and just like the employee, these working dogs should be welcomed along with their handler. Receiving a request from an employee to bring their service animal to the workplace should be given the same consideration that is offered for any accommodation request that is related to a disability.