In recent years, there have been many changes made in public spaces such as restaurants, movie theaters, retail stores, and airlines to allow for emotional support animals. In last month's article, we discussed the difference between a service animal and an emotional support animal for the purposes of private and semi-private places such as dwellings, timeshares, apartment complexes, and hotels. This article addresses service and emotional support animals in public places.
Under the Americans with Disabilities Act (ADA), a place of public accommodation is required to allow a “service animal” which is defined as an animal that has been individually trained to do work or perform tasks for an individual with a disability. The ADA generally contemplates service animals as being dogs but does not specifically eliminate other forms of service animals. In general, businesses that serve the public are required to have a policy in place that allows a person with a disability to have a service animal to accompany them while engaging in business at the place of accommodation. Under the ADA, an emotional support animal who provides comfort to a person with a mental disability does not fall under the qualification of a “service animal” at this time.
The ADA requires that service animals be harnessed, leashed, or tethered, unless the device interferes with the animal's work or the individual's disability prevents them from using these devices. Individuals who cannot use such devices must maintain control of the animal through voice, signal, or other effective controls. Businesses may exclude service animals only if: 1) the animal is out of control and the handler cannot or does not regain control; or 2) the animal is not housebroken. If a service animal is excluded, the individual must be allowed to enter the business without the service animal.
Though a business owner is not permitted to insist on proof of certification of the service animal prior to allowing the person with the disability access to the business with the animal, a business owner is permitted by the ADA to ask the person with the service animal if the presence of the animal is necessary because of a disability. Generally, good indicators of a service animal are special collars, harnesses, or other insignia (although, not all service animals wear those indicators). A business owner should craft a written pet policy for their business which allows for service animals and creates clear guidelines for employees to follow if a patron of their business requires a service animal to accompany them.
Recently in the news, there have been reports of strange emotional support animals such as squirrels and peacocks aboard commercial airline flights. In 1996, the Department of Transportation (DOT) promulgated a regulation providing policy guidance concerning service animals in air transportation and adding to the Air Carrier Access Act (ACAA). The DOT redefined a “service animal” as “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability.
If the animal meets this definition, it is considered a service animal regardless of whether it has been licensed or certified by a state or local government.” At that time, the DOT made it clear that animals who assist persons with disabilities by providing emotional support qualify as a service animal, therefore allowing them on airlines. However, documentation may be required of passengers needing to travel with an emotional support or psychiatric service animal.
Airlines are permitted to exclude certain animals on the following basis: 1) Animals that are too large or heavy to be accommodated in the cabin; 2) pose a direct threat to the health and safety of others; 3) cause a significant disruption of cabin service; or 4) are prohibited from entering a foreign country.
While an airline cannot require a patron to pay an additional fee or cost in the event that they have a service or emotional support animal with them onboard, airline carriers are allowed to create their own policy with regard to emotional and service animals so long as they do not violate ADA and DOT regulations. Most major airline carriers require passengers with emotional support animals to provide proper documentation completed by a medical professional acknowledging that the passenger has a mental or emotional disability recognized by the Diagnostic and Statistical Manual of Mental Disorders and are in need of this emotional support animal.
In the past, airlines have allowed a wide array of unique emotional support animals on planes such as pigs, horses, turkeys, and monkeys; however, with recent problems stemming from emotional support animals on planes and in airports, airlines are beginning to change their policies. Recently, a five-year old girl was mauled at the gate of an Alaska Airlines flight by an emotional support pit bull.
Alaska Airlines and the airport where the incident occurred are facing litigation by the girl's family on her behalf. American Airlines is now requiring vaccination records of all emotional support animals and has restricted their emotional support policies only to include dogs or cats, and in rare cases, a miniature horse. It appears that other commercial airline carriers are following suit. It is important as a patron of an airline looking to travel with an emotional support or service animal to check the specific airline's policy before flying and to comply with those policies.
It is unclear what future changes will be made to provide for service and/or emotional support animals in public spaces as the law and administrative policies are ever-evolving. If you are a business owner looking to draft or revise your animal policy, it is important to confer with legal counsel to ensure that you and your employees are properly handling service and emotional support animals in compliance with the ADA.
This article was written by Jennifer McMenomy, an attorney with Allison MacKenzie in Carson City, which sponsors this content.
