My typical work day involves drafting wills and trusts, forming LLCs and nonprofits, and handling probates. I’ve also had a small niche in representing people and businesses in Americans with Disabilities Act (ADA) matters, and this part of my practice is growing, quickly. Service dogs comprise the bulk of my new ADA clients, including both people with service dogs, and businesses wanting to know what they are permitted to do.
Here are the people who should read this post: business owners; employees at any business; employees at any federal, state or local agency; hospitals; universities; museums; amusement parks; fairs; and I’m realizing that perhaps it would be better to simply list those who do not need to read this post! That would be 1) churches, and 2) private clubs. Churches and private clubs are exempt from complying with the ADA. There could be variations that bring them under compliance, such as a church hosting an event open to the public, but generally they are exempt.
So, how would a “No Pets” sign get my business into trouble? The answer is because you might be prohibiting a service animal which is a violation of federal law, and likely a violation of your state’s laws. Then before you know it you are being sued, or the Department of Justice is contacting you, and if the handler of the service animal is a veteran, you will likely be receiving much negative media attention.
Service dogs, first, are not considered pets. They are actually considered “durable medical equipment,” same as a wheelchair, to a person with a disability. Second, just as you cannot prohibit a wheelchair going anywhere (an historic restaurant actually tried this because the child’s wheelchair wheels would dirty the expensive carpet), you cannot prohibit a service dog from going anywhere with its handler. And as with anything there are exceptions, such as the sterile environments of a hospital burn unit or operating room, but these exceptions are rare.
Refusing a service dog is a violation of a disabled person’s civil rights. It is an actionable legal injury for which you can take legal action. For a law that has existed for 33 years, pleading ignorance isn’t much of an option. However, although businesses should know of a law that is 33 years old now, they often don’t know how it works, and since a lot of attorneys don’t know either, ignorance of the law is fairly common. Businesses are not without options in the service dog arena.
Before discussing possible scenarios, here are a few service dog basics:
- Only dogs can be service animals. And then, a bit down in the rules, a miniature horse can be too. A miniature horse service animal has about one and a half times the working life as a service dog.
- Any breed of dog can be a service dog–yes, even pitbulls and even if your town has a ban. A service miniature horse can be kept despite livestock or non-companion animal bans (e.g., chickens).
- Service animals must be trained to assist the disabled person with tasks. The individual can train the dog–no formal training by a trainer, company or nonprofit is required (see how Ohio law conflicts and is unconstitutional). A dog helping someone in a wheelchair is what people know most, but they can be trained to detect low blood sugar in people with diabetes, engage in search and rescue of an autistic child who has eloped, put full body pressure on their person who is having an anxiety attack or other problem, guide their person with PTSD to an area without a crowd or loud noises, among numerous other tasks.
- No vest, garb, certificate, registration card, or any of this is required by federal law, which trumps state or local laws requiring such things. It is a violation of federal law to require any of these items. People who buy these items are wasting their money, but many do so simply to avoid hassle in public.
- You cannot require that the dog wait elsewhere for its handler, or be separated from its handler. For example, the service dog can’t be made to wait outside of its handler’s hospital room, or tethered outside the restaurant while its owners dines, or sit outside a classroom while its handler is in class.
- Service dogs in training are not covered under federal law (ADA), but might be protected by state law. States cannot require more than federal law (that Supremacy Clause part of our Constitution) but states can allow for more than what federal law allows, so they can protect service dogs in training, but cannot require what I mentioned in point 4.
- A “no pets” sign does not apply to service animals. I’ve seen “No Pets” signs at public parks, beaches, community pools–they must allow service animals. They are not pets.
“I manage a restaurant and this dog in a service dog vest jumped up with its paws on the table, begging for food, and was running around and barking.” This is a typical complaint from a business. Or, “A woman came into [big box store] with 3 dogs in her shopping cart, all yapping and jumping around, and when I asked her to leave she said they’re service dogs and she’ll sue.” What can a business do?
A service dog must be under the control of its handler, and must be housebroken. In the examples above, I would have advised the managers to require the patrons to remove their dogs. The dogs were not under control. Again, there are some exceptions–some service dogs bark and jump as a way to alert their handler of an impending medical event (epileptic seizure, low blood sugar). But that alerting dog who’s barking will be very attentive to its handlers, not running around begging for food. And remember to eject the dog, not the person, even though most people will leave with their dog.
If a business has concerns about whether the dog or miniature horse is a service animal, and the person’s disability is not obvious, you can ask about the animal. The agency that makes the rules with this part of the ADA is the Department of Justice (DOJ), which states in its guidance materials that you can ask two questions: 1) is the dog a service animal required because of a disability?, and 2) What work or task has the dog been trained to perform? Be careful of what you may not ask. You may not ask about the nature or extent of an individual’s disability, or require proof that the animal has been certified, trained or licensed as a service animal, or require the animal to wear an identifying vest or tag, or ask that the dog demonstrate its ability to perform the task or work.
My advice for businesses regarding service animals:
- Train your employees. Your business can have the most compliant service animal policy, and it can be undone (and create liability for you) by an employee not trained on the policy or the law’s requirements.
- Look at the animal’s behavior, not whether it is wearing a vest or the owner has a card or certificate. Is it being disruptive, barking, pulling on its leash, jumping around (likely not a service dog)? Or is it almost invisible, down by its owner’s feet or if not at its owner’s feet, is it quiet and attentive to its owner?
- If the person’s disability is obvious, and the dog is not being disruptive, do not question whether it is a service dog.
My advice for service animal handlers:
- Video any interactions with employees.
- Don’t expect the police to know the ADA, but they should be expected to uphold state law. Know your state’s service animal laws.
- You do not need to answer questions or justify your service animal to customers or patrons, only to the people who have the right to inquire, such as employees, managers, etc.
- You do not need to explain your disability, and it is illegal to ask. Your answer to “what task is your dog trained to perform?” can be answered without going into your disability, such as “medical alert.”
- Contact the business’s corporate office, if it has one, and consider contacting an attorney and/or filing a complaint with the DOJ.
- If you have a service dog for your child, have it as a 504 accommodation at school, not in an IEP.
Feel free to contact me with any service animal questions at email@example.com, http://www.juliemillslaw.com.