Animals on your premises?
Recent news broadcasts have highlighted the extent to which some people are claiming their pets (large and small) to be Emotion Support Animals.
Business owners need to know what is (and is not) required of them regarding animals in their businesses. The rules vary depending on whether they operate a housing-related business.
Two of the many federal statutes that apply to businesses are the Americans with Disabilities Act (“ADA”) and the Fair Housing Act (“FHA”). The ADA applies to a wide variety of businesses while the FHA applies to housing-related businesses.
The ADA addresses reasonable accommodations through the use of Service Animals. The FHA uses the broader term Emotional Support Animal (see the definitions below).
What is the difference between a Service Animal and an Emotional Support Animal?
According to the Michigan State U. Law School FAQs on Emotional Support Animals:
“Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. These tasks can include things like pulling a wheelchair, guiding a person who is visually impaired, alerting a person who is having a seizure, or even calming a person who suffers from Post-Traumatic Stress Disorder. The tasks a service dog can perform are not limited to this list. However, the work or task a service dog does must be directly related to the person’s disability. Service dogs may accompany persons with disabilities into places that the public normally goes. This includes state and local government buildings, businesses open to the public, public transportation, and non-profit organizations open to the public. The law that allows a trained service dog to accompany a person with a disability is the Americans with Disabilities Act (ADA).
An emotional support animal is an animal (typically a dog or cat though this can include other species) that provides a therapeutic benefit to its owner through companionship. The animal provides emotional support and comfort to individuals with psychiatric disabilities and other mental impairments. The animal is not specifically trained to perform tasks for a person who suffers from emotional disabilities. Unlike a service animal, an emotional support animal is not granted access to places of public accommodation. Under the federal Fair Housing Act (FHA), an emotional support animal is viewed as a “reasonable accommodation” in a housing unit that has a “no pets” rule for its residents.”
Americans with Disabilities Act and its Application to Businesses.
The ADA requires businesses to permit a person with a disability to be accompanied on their premises by a service animal.
If a person brings a dog on your premises, such as a restaurant, your staff may ask only the following two 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.
Your staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.
Business owners need to be sure to train their staff on these permitted and prohibited questions.
Fair Housing Act and its Application to Businesses.
The FHA protects persons from discrimination in housing transactions based on race, color, national origin, religion, sex, physical and mental disabilities and familial status. “Discrimination” and “Housing Transactions” have both been defined very broadly by courts and by federal and state enforcement agencies.
Real estate sellers and rental property managers (among others) are required by the FHA to make reasonable accommodations of a tenant’s Emotional Support Animals (“ESAs”).
A reasonable accommodation often involves changes to the landlord’s policies or services that are necessary because of someone’s disability. A common request is for an exception to a landlord’s “No pets” policy.
The FHA does permit a landlord to request a letter from a reliable third party (such as a doctor or a social worker) to verify the person’s disability and how it is that the requested accommodation would make the residence more effective for the tenant.
Conclusion – Types of Requests that Businesses Are NOT Required to Grant
- Businesses that aren’t housing-related are NOT required to permit ESAs on their premises.
- Businesses of all types are NOT required to accommodate animals for persons who don’t have disabilities.
As you can see, this is a very complicated issue. Consult with a knowledgeable attorney who is licensed in your state to get help complying with these laws. Mistakes can be costly in many ways.
Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.
© 2019 Michael S. Oswald