In the last several years, the use of service dogs has increased.
The “service” dogs, more commonly referred to as “guide” dogs, are most often recognized as those dogs who are trained to assist the visually or hearing impaired. However, today’s service dog has a broader mission: they can alert a person who is about to have a seizure, calm a person with anxiety or Post Traumatic Stress Disorder (PTSD), or remind a person to take medication.
The use of service dogs has become particularly common for veterans in recent years.
Take note of an incident in Panama City Beach, Florida – a veteran who has a traumatic brain injury went to a hotel with his service dog and requested a room. He was denied a room even though there were available rooms. It will not be a surprise if this incident leads to a lawsuit for ADA violations and emotional distress.
In the Bronx, New York, a veteran with a service dog was denied access to a Kentucky Fried Chicken (KFC) establishment, sued KFC for $1 million, and then settled for an undisclosed amount. A similar situation occurred with this veteran involving a local McDonald’s.
These incidents are not unusual.
In that vein, it is important to understand some aspects of the Americans With Disabilities Act (“ADA”) as it relates to the use of service dogs and to make sure that your employees are trained appropriately. The ADA requires that state and local governments, businesses, and non-profit organizations must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally permitted. The work or task a dog performs must be related to a person’s disability.
If a person’s disability is not obvious, limited inquiries are permitted. Only two questions may be asked: (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. Specific inquiries as to the type of disability, a demonstration of the task of the service dog, or requests for medical documentation or special identification card/ training documentation for the dog, are prohibited.
A policy of “no pets” does not exempt a company from the ADA requirements as service dogs are not considered to be “pets.”
A person with a disability cannot be asked to remove his/her service dog from the premises unless the dog is out of control and the handler does not take effective action to control it or the dog is not housebroken. Should there be a legitimate reason to remove a service dog, the person with the disability must be provided an opportunity to obtain goods or services without the dog’s presence.
Businesses that sell or prepare food are required to allow service dogs in public areas even if state or local health codes prohibit animals on the premises.
People with disabilities who use service dogs should not be isolated from other patrons, treated less favorably than other patrons, or charged fees that are not charged to other patrons without service dogs. In addition, if a business requires a deposit or fee to be paid by patrons with pets, it must waive the charge for service animals.
Given the potential exposure to a business that serves the public, a company should review its insurance policies to determine what, if any, third party discrimination coverage, or other relevant coverage, it may – or should – have.
The above discussion is not exhaustive and businesses should become familiar with the ADA provisions relevant to this issue.