As the number of Emotional Support Animals – or ESAs – rises, so too do the questions of the legality of what businesses can do to prevent non-service animals from entering their businesses, and whether they have the right to be in public places, such as Farmers’ Markets. Service Animals are certified working dogs that have the right to go anywhere that the public can go, including areas that sell or prepare food. ESAs do not have that same legal protection under the Americans With Disabilities Act (ADA).
Before we get started, however, we want to make some definitions clear:
ADA:
The Americans With Disabilities Act of 1990, or ADA, protects the rights of American citizens with a disability from facing discrimination.
Service Animal:
Service animals are defined as dogs (and rarely, miniature horses) that are individually trained to work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. The work or task a dog has been trained to provide must be directly related to the person’s disability.
Emotional Support Animal or Therapy Dog:
Any domesticated animal whose sole function is to provide comfort or emotional support by being present, though doesn’t perform a specific job or task, and is prescribed by a mental health professional. The only requirement of an ESA is that the animal is well-behaved in public.
It’s important to note that service animals are considered working animals, and not pets, and are limited to canines and miniature horses. ESAs, however, are simply considered pets and can be any domesticated animal. An easier way to think about it is this: both types of animals replace the positions of humans. A service animal is dutybound to prevent injury or illness, the same as a doctor, nurse, or other professional may. An emotional support animal is just that – support, such as a friend or family member might provide.
Telling the Difference
The difficulty is telling the service animals apart from the ESAs. Service animals usually – but not always – wear a vest or some sort of identification marking them as a service animal. Vests and ID are not required by the ADA, the only requirements are that the animal must be harnessed, leashed, or tethered, unless these devices interfere with the service animals work or the individual’s disability prevents using these devices; for example, a dog serving an individual with PTSD may be off-tether, in order to better control the perimeter around their handler. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.
Where Service Animals Can Go
By law under the ADA, a service animal would be allowed anywhere the public is normally allowed to go, such as businesses, public spaces with a “no dogs allowed” policy, and medical facilities, including hospitals and EMS transport.
Where Emotional Support Animals Can Go
An ESA can be denied entry to any public or private space, just like any other pet, including places that sell and prepare food. The only rights protected by law for ESAs are the Federal Fair Housing Amendments Act, which allows them to qualify for no-pet housing without a fee, and the Air Carrier Access Act, which dictates the accessibility requirements for aircraft.
What You Can Do
The ADA allows establishment owners to ask only two questions, and only if it is not obvious what service the animal provides. The two questions one can legally ask are:
Is the dog a service animal required because of a disability?
What work or task has this animal been trained to perform?
Therefore, a business can ask if the animal is required due to a disability and can ask what specific tasks they’ve been trained to perform. The handler’s duty is to answer the questions; if they decline to specify the animal’s tasks, or if the task is to simply provide emotional support, the animal can be denied entry.
There is one condition on which a business owner can expel even a service animal from their business. The handler is still responsible for the behavior of their animal, and if the dog is barking uncontrollably, growling, jumping on people, running away, etc., then the handler can be requested (and is required) to get their animal back under control. If they cannot or will not, the business owner has the right to ask them to leave if the animal poses a direct threat to the health and safety of people in the establishment.
What You Can’t Do
While the ADA allows businesses to ask the above two questions, the business owner cannot ask these questions if the need for the service animal is obvious. Examples include when a dog is guiding an individual who is blind or pulling a person’s wheelchair. They cannot ask about the nature or extent of a person’s disability, request the animal wear an identifying vest or tag or show that the animal has been certified trained or licensed as a service animal, and cannot ask that the animal demonstrate its ability to perform the task or work. Business owners also may not deny access or service to a service animal or their handler based on allergies or fear of dogs.
The ADA defines a service animal as an extension of its handler, and so businesses cannot treat them as two separate entities, nor any different from any other person. This means that they cannot be charged any extra fees or costs in relation to the animal. For example, they are permitted to stay in non-pet-friendly hotel rooms, in addition to not being charged a pet fee. However, if a business normally charges people for the damages they cause, they can charge the handler of the service animal for any damages that occur as a result of the animal’s being in the shop.
The laws that apply to where assistance animals are permitted to go do not actually require special licensing or registration of the animal. It is, however, violation of the ADA if someone misrepresents an animal as a service animal. This is a crime in New York State and is punishable by a $250 fine and up to one year in jail.
What to Do If an Issue Arises
If you suspect an animal in your business is not a service animal, you can ask the two questions. If they cannot or will not answer them, and you ask them to leave, they may be upset for being called out on their taking advantage of a loophole and threaten you or your business for being in breach of ADA. This becomes a case of being sure you’ve done your homework. The ADA website has a link to a PDF brochure of the rights and responsibilities of business owners and service animal handlers, which can be found below. A suggestion from an ADA spokesperson suggests printing out a couple of those and keeping them on hand for situations such as this.
When the person cannot nor will not answer which tasks the animal performs and you deny them entry, hand them a pamphlet and explain that you reserve the right to deny entry to any animal if they cannot specify the work or tasks the animal performs.
Resources
ADA | Service Animal Booklet
ADA | Frequently Asked Questions
ADA | Small Business Primer
Northeast ADA | Easy Fact Sheet
Northeast ADA
1-800-949-4232
www.northeastada.org