Does Your Business Have a Legal Obligation to Accept Customers with Emotional Support (Comfort) Animals?
By: Alisa N. Carr, Esq.
Recent news coverage of Delta and United’s efforts to balance passenger and crew safety with accommodation of service and emotional support animals has added to the confusion regarding a business’s legal obligation to admit customers with emotional support – or comfort – animals.
There is an important legal distinction between a service animal and a comfort animal.
Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. The work or task a dog has been trained to provide must be directly related to the person’s disability. = A dog, whose sole function is to provide comfort or emotional support, does not qualify as a service animal under the Americans with Disabilities Act (“ADA”).
In addition to the provision for service dogs, the revised ADA regulations have a separate provision addressing miniature horses that have been individually trained to do work or perform tasks for people with disabilities. Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. The regulations set out four assessment factors to assist covered entities in determining whether miniature horses can be accommodated in their facility. The assessment factors are:
(1) Whether the miniature horse is housebroken;
(2) Whether the miniature horse is under the owner’s control;
(3) Whether the facility can accommodate the miniature horse’s type, size, and weight; and
(4) Whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility.
Emotional Support or Comfort Animals
While a service animal is limited to dogs, and in limited instances miniature horses, an emotional support or comfort animal is virtually any animal that qualifies as an “assistance animal”; a broader term recognized as a reasonable accommodation for a person with a disability under the Fair Housing Act.[i] In addition to dogs, the definition of an emotional support animal may apply to cats, birds, guinea pigs, lizards and other non-traditional assistance animals.
Whether your business is required to admit a customer with
an emotional support animal is dependent upon whether your business is
a covered entity under the ADA or is housing covered by the Fair Housing Act.
Under the ADA, businesses (both for-profit and non-profit) that are “public accommodations”; one of the twelve categories of businesses that serve the public,[ii] must allow service animals to accompany people with disabilities in all areas of the business where the public is normally allowed to go. A service animal must be harnessed, leashed or tethered and under the control of the customer. 42 U.S.C. § 12182.
In situations where it is not obvious that the dog is a service animal, staff may ask only two specific 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?
A business may not request any documentation, require the dog to demonstrate its task or inquire about the nature of the customer’s disability.
The ADA limits assistance animals to a service dog (or miniature horse) and does not require a public accommodation to accept an emotional support or comfort animal. So, any animal that is not a dog (or miniature horse) can categorically be excluded. If your customer has a dog that is presented as a service animal the best inquiry is: “What work or task has the dog been trained to perform?” If the answer is that the animal provides emotional support or comfort, the dog does not qualify as a service dog, and the animal may be excluded from your business.[iii]
The Fair Housing Act
The Fair Housing Act,[iv] 42 U.S.C. § 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords, real estate companies and lenders.
Unlike the ADA’s definition of service animal, the FHA employs the broader term “assistance animal” which includes not only service animals (dogs) but emotional support or comfort animals. An assistance animal is not a pet. Therefore, a business that is subject to the FHA (typically a housing provider) may only ask two questions when considering whether an assistance animal is a reasonable accommodation:
(1) Does the person seeking to use and live with the animal have a disability – i.e., a physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?[v]
According to Department of Housing and Urban Development (“HUD”) regulations, a “no” answer to either of these two (2) questions means that a housing provider is not obligated to make a reasonable accommodation. This may mean that the person does not meet the definition of disability or that the assistance animal does not help with symptoms of the disability.
If the answer is “yes” to both, then HUD regulations and the FHA requires an exception to a “no pets” rule.
The FHA does not regulate public accommodations such as restaurants and retails stores. If your business is a public accommodation; but does not provide housing pursuant to the FHA – absent a local or state law, you are not legally obligated to admit emotional support or comfort animals that accompany customers; only service animals.
The proliferation of websites offering quick and inexpensive paperwork to “certify” an emotional support animal has been an ongoing concern with housing providers that is now presenting issues with retailers, restaurants, hotels and other public accommodations. Staff training and knowledge of the applicable laws and regulations is fundamental to avoid on site issues with customers and to foster a balance between customers and staff and, avoid disruptions in business operations.
The attorneys in Leech Tishman’s ADA Practice Group work with clients to proactively train staff, develop policies and procedures and identify issues to prevent ADA and FHA litigation.
Alisa N. Carr is a Partner in Leech Tishman’s Litigation, Real Estate and Energy Practice Groups. She focuses her practice on litigation, with an emphasis on ADA Title III and FHA defense. Alisa is based in the Pittsburgh office and can be reached at 412.261.1600 or firstname.lastname@example.org.
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[i] 42 U.S.C.A. § 3601 et seq.
[ii] A public accommodation falls within one of the following twelve (12) categories:
- Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
- Establishments serving food or drink (e.g. , restaurants and bars);
- Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums);
- Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);
- Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);
- Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);
- Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
- Places of public display or collection (e.g. , museums, libraries, galleries);
- Places of recreation (e.g. , parks, zoos, amusement parks);
- Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
- Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
- Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).
[iii] Examples of trained service dogs include:
- Guide Dog/Seeing Eye Dog – trained as a travel tool for persons with severe visual impairment or blindness.
- Hearing or Signal Dog – trained to alert a person who has significant hearing loss or is deaf.
- Seizure Response Dogs – trained to assist a person to stay safe during a seizure.
- Diabetes Alert Dog – trained to alert a person before their blood sugar becomes too high or low.
- Mobility Assistance Dogs – trained to assist with standing up, stabilizing when walking, retrieving items, turning on lights, opening/closing doors.
- Psychiatric Service Dog – trained to assist individuals with disabilities and detect the onset of psychiatric episodes and/or lessen their effects.
- Social Signal Dog – trained to assist a person with autism.
[iv] 42 U.S.C. § 3601 et seq.