With increasing frequency, dog owners are claiming their pets are service animals, even when they are not. Unlike the United Kingdom, the United States does not have a requirement that service dogs be certified, but they do have to meet certain criteria under the Americans with Disabilities Act (the ADA) and an increasing number of states are making it illegal to misrepresent your pet as a service animal.
According to the ADA, service dogs are defined as “dogs that are individually trained to do work or perform tasks for people with disabilities.” This means the person must have either a physical or mental impairment that substantially limits one or more major life activities and the dog must be specially trained to aid with the impairment. The most obvious example is a seeing-eye dog guiding a blind individual, but post-traumatic stress disorder, or PTSD, is also covered by the ADA as well and those individuals suffering from it may have a service dog that helps calm them down during an episode.
There are a wide range of tasks service dogs may perform. They can, for example, bring medication in a crisis, call 911 on a K9 rescue phone, provide balance assistance, summon help, turn on or off a light, respond to a smoke alarm, or provide tactile stimulation to disrupt an anxiety attack. Put simply, the task must mitigate the disability. Simply providing protection, emotional support, or companionship do not count as trained tasks under the ADA.
Some people believe that if they obtain a service dog identification or certificate from one of dozens of websites, then their dog is a service dog and businesses must allow the animal into the facility. None of these websites or organizations is federally recognized by the ADA. They are simply a way for the website to make money.
Many business owners and employees have the misconception they are not allowed to ask any questions about a service animal and fear they may be slapped with a lawsuit under the ADA for discrimination. While business owners and their employees cannot discriminate against persons with a disability by disallowing a service animal, they may ask two questions: “is this dog a service dog?” and “what kind of work or tasks does the dog perform?” An employee may not ask for proof the dog is a service dog. However, if a discrimination complaint is filed, the individual filing the complaint will be required to provide proof to the court that the animal qualifies as a service dog. The same is true if the individual is arrested for trespassing. They will be required to provide proof to the court if their affirmative defense is that the animal in question is a service dog.
Businesses must make accommodations for service dogs, but there are rules related to public safety and health. If the dog is out of control, it is permissible to ask the handler and dog to leave. This is simply a matter of public safety. Similarly, if the service dog is not housebroken, it is okay to ask them to leave for reasons of public health. The business must then allow the handler the opportunity to obtain goods or services without the animal.
Service dogs must also be leashed, harnessed, or otherwise tethered, unless doing so would interfere with the particular task they perform. If that is the case, the individual must maintain control through voice commands or other means.
Businesses do not have to permit service dogs to ride in shopping carts and businesses do not have to provide any care for the service dog. This means they are not required by law to supply food, water, or toileting facilities. There is no rule against providing such care, however, but business owners do so at their own risk.
Business owners and facilities are not obligated to let service dogs go anywhere that is off-limits to the general public. For example, the public is not allowed in a restaurant’s kitchen, so neither is service dog. In hospitals, service dogs are allowed to be in waiting rooms or patients rooms, but not sterile areas.
There is also a distinction between emotional support animals (ESAs) and service dogs and there are different legal requirements and protections. First, ESAs do not have to be dogs, but they do belong to a person with a disability. In this instance, the person’s doctor makes a determination that the animal is necessary for a person’s mental health and writes a prescription stating the pet is necessary. There is no training required of the animal. As such, business owners do not have to make accommodations by allowing the animal into the business.
Business owners and their employees should be aware of the ADA’s regulation regarding service dogs so they do not infringe on the rights of persons with disabilities and risk a discrimination suite, but there are limits to what they must accommodate.
If you are a business or person with a disability and want to know more about your rights, responsibilities, or obligations, please call us a 704-457-1010.
NOT a service dog.