Emotional Support Animals, Pets, and Service Animals in Public
As patio season comes upon us, I cannot help but visualize the back patio at the brewery. Flowers in bloom, tables filled with people and pints of beer. Kids running around and puppies and not so young puppies everywhere. What a beautiful sight! However, what happens if something goes wrong? I know, I know. You think I am a Debbie downer. However, that’s what I am here for! To help protect business owners by helping to explain what your rights are and/or what you should be aware of and yada yada.
Now, in the beautiful patio scene provided above plenty can go wrong. But let us start with the lovely puppies and whether you should allow them on premises or if you even have the right to say they cannot be at your establishment. We will talk about flyaway umbrellas and the adorable kids a little later, but for now just maintain appropriate insurance and make sure you provide adequate notice of possible dangers unique to your establishment. For example, a sign that might read “Please do not throw the rocks from the flower garden at your siblings;” or “No relay races allowed in the hallway corridor;” or “Lick the windows at your own peril.”
Next, generally no animals are allowed in restaurant establishments. The only animals allowed in restaurants are service animals. However, if you don’t serve food, then you may allow animals on your property – it is up to each individual owner whether they will have a pet policy. With the exception of service animals. You cannot and should not turn away an individual with a service animal – just because of the service animal (you may turn them away for other legal reasons – but not because of their service animal). Massachusetts law states, generally, individuals with disabilities have the right to be accompanied by a service animal wherever the individual is allowed to go. However, Massachusetts also states that individuals do not have a right to an emotional support animal or a pet. So, if you have a no pet policy, be sure you do not turn away someone with a service animal. How are you to be sure that the animal is a service animal you ask? Well, it is tricky.
First, only a miniature horse or a dog can be a service animal. Yes, you read that correctly, a miniature horse can be a service animal. Next, an individual with a disability accompanied by a service animal may not be asked to provide documentation of a disability, to answer questions regarding his or her disability, or to have the service animal demonstrate its work. Only when the individual’s disability is not obvious, staff may ask the following two questions to determine whether an animal is a service animal:
Is the animal a service animal required because of a disability?
What task or service is the animal trained to perform?
Further, staff cannot question the individual’s credibility. The law requires staff to take the individual at their word. So, if the patron says their miniature horse is required because of a disability you must take them at their word.
However, any animal can be an emotional support animal or a pet.
Remember, only dogs and miniature horses can be service animals. So, if the animal is not a dog or a miniature horse, it can only be an emotional support animal or a pet.
Is it an emotional support animal or pet?
If the animal is not a dog (or miniature horse), or it is a dog (or miniature horse) but does not take specific actions to mitigate the symptoms/limitations of a disability, then it is not a service animal. No further inquiries are necessary for places of public accommodation, government situations or transport or at your establishment if you have a no pet policy.
However, if there is a disability-related need for the animal to provide comfort and support, then it is an emotional support animal. There is no right to an emotional support animal in public accommodations. Accordingly, you do not have to let emotional support animals into your establishment. Unless, the individual works for you and has requested the animal as an accommodation. See more on that below.
However, if the individual does not have a disability (note many disabilities are invisible and Massachusetts broadly defines what can be considered a disability) or does not have a disability-related need for the animal, then the animal can usually be considered a pet. There is no right to bring your pet into public accommodations.
Service animals and emotional support animals in employment.
The part of the American Disabilities Act (“ADA”) that applies to employment (Title I) does not specifically address service animals and emotional support animals. So, if an employee needs to bring their animal to work, they should use the standard reasonable accommodation process.
The employee needs to explain their disability-related need for the reasonable accommodation they are requesting. They may need to provide a letter from a medical provider to support their request.
The employer has an obligation to evaluate each request on a case-by-case basis. They should look at whether the request is required because of a disability. They may explore alternative effective accommodations. They should engage in an interactive process with the employee.
The employer can turn down the request if:
It is not required because of a disability,
The employee does not need it to perform their work, or
It would cause undue hardship such as substantial cost, difficulty, disruption, or fundamental alteration to the operation of the business.
An individual might need the support of a service animal to perform their work tasks, for their commute, or for non-work-specific but necessary support while working, for example a dog that alerts their owner to the onset of a seizure. If multiple accommodations exist that would be effective in meeting the employee's needs, the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations and may choose the accommodation that is easiest to provide.
Please note, there is no right to have a pet in public accommodation or as a reasonable accommodation in employment.
To wrap this up, you must allow a service dog or miniature horse in your establishment. However, the service animal must not be disruptive or out of control – if the service animal misbehaves or is out of control or is messing on the floor – you do not have to tolerate it – more on that another time. You do not have to allow emotional support animals into your establishment, unless the individual who desires the animal to be brought in is employed by you and they need the animal to conduct the essential functions of their job (after having gone through the interactive process); and there are no rights to bring pets to your establishment at all. If you have any concerns at all about establishing a protocol for your staff on how to manage this sensitive situation, please reach out to your local labor and employment attorney to assist you! We love this kind of stuff and can provide training to your entire staff as well!
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between General Counsel by Cannon and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.
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