Under Title III of the Americans with Disabilities Act (ADA), "public accommodations" — including privately owned businesses that serve the public, such as restaurants, hotels, retail stores, theaters, concert halls, and sports facilities — are prohibited from discriminating against individuals with disabilities. Title III requires these businesses to allow people with disabilities to bring their service animals onto business premises in whatever areas customers are generally allowed.
In September, the Department of Justice (DOJ) published a final rule amending regulations implementing Titles II and III of the ADA, effective March 15, 2011. Among the changes public accommodations that are covered by Title III should be aware of: a new definition of "service animal."
Previously, a service animal was defined as "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability." The new final rule defines "service animal" as "any dog that is individually trained...." The rule specifies that other types of animals do not qualify as service animals (except for trained miniature horses, subject to certain limitations).
Why the change to dogs only? The Department of Labor (DOL) explained that individuals with disabilities who use trained guide or service dogs were rightly concerned that by having untrained or exotic animals deemed "service animals," their own right to use service dogs may become unnecessarily restricted or questioned. The DOL explained that "limiting the number and types of species recognized as service animals will provide greater predictability for public accommodations as well as added assurance of access for individuals with disabilities who use dogs as service animals."
The DOL decided that, despite their reported usefulness, non-human primates (e.g., capuchin monkeys) would not be recognized as service animals for purposes of this rule because of their potential for disease transmission and unpredictable aggressive behavior, characteristics which make them unsuitable for use as service animals in the wide variety of public settings subject to this rule.
The new rule also specifies that the work or tasks performed by a service animal must be directly related to the handler's disability. Examples include assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, and providing physical support and assistance with balance and stability to individuals with mobility disabilities.
The final rule clarifies the DOL's long-standing position that dogs that are used purely for emotional support are not considered service animals. However, psychiatric service animals that are trained to do work for individuals with an ADA-protected psychiatric disability are still covered; such work may include reminding the handler to take medicine, providing safety checks or room searches for persons with post-traumatic stress disorder, interrupting self-mutilation, and removing disoriented individuals from dangerous situations.
Your Rights And Parameters
Under the final rule, a public accommodation has the right to ask the service animal's handler:
if the animal is required because of a disability, and
what work or task the animal has been trained to perform.
However, these inquiries are not permitted when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is clearly guiding an individual who is blind). Important: The public accommodation cannot require the handler to produce documentation about the service animal.
A public accommodation has every right to ask an individual with a disability to remove a service animal from the premises if the animal is out of control and the animal's handler does not take effective action to control it, or if the animal is not housebroken. The service animal must be under the control of its handler at all times. It should have a harness, leash, or other tether, unless the handler is unable to use a tether or it would interfere with the service animal's ability to carry out its work, in which case the animal must still be under the handler's control via voice control, signals, or other effective means.
Bottom line: If your workplace is covered under Title III of the ADA, be sure to train your managers and employees on the legal rights of individuals who use a service animal.
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