(Photo) Dog Outside WindowBy Andrew McNaught

Readers will recall that we recently corralled the law on “Assistive Animals” in the workplace, here. Now, in part two of our mini-series, we pony up an explanation of the rules governing the use of service animals by customers and patrons (as opposed to employees) in places of public accommodation, e.g., grocery or other stores, hotels, and movie theaters (as opposed to the workplace). While there are a few similarities, the California law covering service animals in places of public accommodation differ in significant ways from that governing such animals in the workplace. Reconciling these differences can be like herding cats, causing confusion for customers, employees, and employers that operate places of public accommodation. Please read on to ensure that when confronting these issues you will not be barking up the wrong tree.

What Is a “Service Animal,” Anyhow? While the workplace use of assistive animals is analyzed under the California Fair Employment & Housing Act and Title I of the federal ADA, the use of service animals by disabled individuals in places of public accommodation is governed by the California Unruh Act and Title III of the ADA. While some states define “service animals” more broadly, California (remarkably) adopts the more restrictive federal guidelines set forth in Title III. A “service animal” under Title III and California law is limited to any dog or miniature horse (yes, miniature horse) that is individually trained to do work or perform tasks for individuals with disabilities. Other species of animals—whether wild or domestic, trained or untrained—are not “service animals,” and are thus not permitted in places of public accommodation in California. So there is no special protection for the use of cats, rabbits, turtles, monkeys, llamas, or other animals sometimes said to provide service. See Patricia Marx, Pets Allowed, How to Take Your Pet Everywhere, THE NEW YORKER, (Oct. 20, 2014), http://www.newyorker.com/magazine/2014/10/20/pets-allowed.

As in the employment context, pets in the public accommodation context do not qualify as “service animals” unless they meet the criteria above. Moreover, while an assistive animal may be a “reasonable accommodation” for a disabled employee in the workplace, assistive animals need not be permitted in places of public accommodation if their sole function is to provide emotional support, comfort, therapy, companionship, or crime deterrence (even if they are dogs or miniature horses). So when a customer claims some entitlement to bring a “therapy ferret” or “comfort Chihuahua” into your place of public accommodation, you know that is horse-feathers.

What Does a Legitimate Service Animal Do? The “work” or “tasks” that a legitimate service animal performs in a place of public accommodation must be directly related to the individual’s disability. Some examples include (i) guiding people who are visually impaired, (ii) pulling a wheelchair, (iii) alerting and protecting a person who is having a seizure, (iv) retrieving dropped items, (v) alerting hearing-impaired people to the presence of people, sounds, and hazards, and (vi) reminding a person with mental illness to take prescribed medications. As noted above, providing emotional support, well-being, comfort, companionship, or crime deterrence is not considered “work” or “tasks” performed by a service animal.

How Do You Know Whether an Animal is Really a Service Animal? Unfortunately, this is can be a challenging question, for retailers in particular. Your employees are very restricted in what they can ask customers in trying to make this determination. That is why appropriate training for customer-facing employees is critical to avoiding claims under Title III and the Unruh Act. If it is not obvious that the animal is a service animal (such as a guide dog leading a plainly blind patron), then your employees can ask the following two questions: (1) Do you need this animal because of a disability? (2) What tasks has the animal been trained to perform? If the customer answers “no” to the first question, then the animal is not a service animal and may be excluded from the facility. If the customer says “yes” in response question 1, then your employee can ask question 2. If the customer is unable to identify the tasks that the animal has been trained to perform (or is in training to perform), then the animal is not a service animal. But if the customer can identify such tasks, and they sound plausible, then that should end the inquiry and the animal should be permitted access with the customer, even if the employee suspects the customer is not being truthful.

What Should My Employees Not Do or Ask? Here is what not to do when interacting with a customer in regards to the service animal inquiry: (1) Do not ask the animal to demonstrate the work or tasks that has been identified. (2) Do not ask for any paperwork, certificate, or other documents to verify the animal’s status—you cannot ask for “proof” that the animal has been certified, trained, or licensed as a service animal, and indeed there is no such requirement under Title III or the Unruh Act, other than that the animal must be individually trained to perform tasks related to the individual’s disability. (3) Do not require that the animal wear any special garment. (4) Do not ask the individual claiming to have a service animal to explain or verify the nature of the individual’s disability. (5) Do not pet or otherwise interact with the service animal.

Other Key Considerations: Service animals must be harnessed, leashed, or tethered, unless these devices would interfere with the service animal’s work or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective means of control. You must allow individuals with disabilities to bring their legitimate service animals into all areas of any facility where customers are normally permitted. These areas include public food and beverage areas and swimming pool areas, but not a pool or whirlpool. You need not feed or care for a service animal. A service animal may be excluded if the animal is out of control and the handler does not take effective corrective action to gain control, or if the animal is not housebroken. When there is a legitimate reason to ask that a service animal be removed, your employee must offer the individual with a disability the opportunity to obtain goods or services without the animal’s presence. Never have an employee exclude a service animal without manager approval and without then documenting the reason.

Workplace Solution. Our ADA Title III team members in California are highly experienced with these public accommodation issues, and prepared to assist you with them so that you do not end up on a wild goose chase.

And for more information on ADA Title III news and insights, see our cousin-blog at http://www.adatitleiii.com/.

Edited by Chelsea Mesa