It’s Raining Cats and Dogs (and Miniature Horses)

Accommodate service animals—it’s the law

By Lisa Unger , Ken Merber

This article is part of CLM’s publication Professional Times magazine, a production of CLM’s Management & Professional Liability Community. Click to view previous digital editions of Professional Times.

According to a Census Bureau Report from 2010, almost one in five people in the United States had some form of disability. This translates to approximately 56.7 million people, or 19 percent of the U.S. population. Moreover, more than 50 percent of those who reported that they were disabled characterized their disabilities as severe. Even more alarming, estimates from theNational Alliance on Mental Illness document that one in four Americans, or 61.5 million people, will suffer from a mental or emotional disability this year. Many rely on animals for support.

In light of the fact that the definition of a disability has evolved and expanded, it is critical to understand and appreciate the statistics related to disabilities and their significance. Additionally, and quite importantly, there has been a direct correlation between the increase in the number of individuals with disabilities and their need and requests for service animals and emotional support animals. These service and emotional support animals are needed not only in the workplace, but also in places of public accommodation, residential housing projects, apartments, on airlines, and practically anywhere people may be expected to go.

In order to accommodate foreseeable and legally required special requests, one must understand and appreciate the difference between emotional support animals and service animals. Emotional support animals, also referred to as comfort animals and therapy dogs, are not service animals under Title II and Title III of the Americans with Disabilities Act (ADA). Support animals provide companionship, relieve loneliness, and help with depression, anxiety, and certain phobias. These animals do not require any specialized training. They commonly include dogs, cats, and even pigs.

In stark contrast to emotional support animals, service animals are individually trained to do work or perform tasks for the benefit of an individual with a disability (physical, sensory, psychiatric, intellectual, or other mental disability). While most service animals are dogs, there is no express limitation to the type of animal that can be trained to service disabled people. In fact, the law has expanded to even include miniature horses, which can be bred and trained to assist persons with disabilities. The tasks for which service animals are trained include pulling a wheel chair; retrieving a dropped item; alerting a person to a sound that reminds them to take medication; pressing an elevator button; alerting a diabetic to an imminent event related to the person’s disease; and alerting disabled people to the onset of other conditions such as a stroke or seizure.

It is important to note that, under the ADA, the line of permissible questions for service animals vary greatly when those questions are posed in the workplace versus places of public accommodation. An owner, employee, or other person associated with a business can lawfully ask only two questions regarding the company’s obligation to accommodate its customers: Is the dog (or other service animal) a service animal required because of a disability? What work or task has the dog (or other service animal) been trained to perform? Questions that are absolutely prohibited include inquiries concerning the nature or degree of the person’s disability; requests for medical documentation related to the disability; requests for medical identification; requests for proof of the animal’s training, such as requests for a training card for the animal; and inquiries about how the animal’s training is working in practice.

Employers and others related to the workplace are permitted and encouraged to ask many more questions than operators of places of public accommodation. An employer must treat these requests like any other request for accommodations. Additionally, employers are permitted to demand documentation on the condition/disability, limitations caused as a result thereof, and the needs of the person seeking employment and special accommodations. Employers may also set boundaries and expectations for the employee. Employers must be mindful of what can and cannot be said to or asked of other employees. They should also appreciate the concerns and issues of all employees, including such matters as allergies, religious issues, and others.