Imagine that you are responsible for an establishment open to the public, perhaps a church, a restaurant, a hardware store or an apartment building. A woman enters with a dog on a leash. She says the dog is a service dog or emotional support animal, and she requests that the dog be allowed to accompany her to your facility. What are you doing? Are you required to respond to the request? Are you prohibited from responding to the request? Are you allowed to ask questions to determine if the woman has a good faith basis for making the request? Does it make a difference if the dog wears a special vest or harness?
Our starting point is that in the absence of a specifically applicable law or regulation, the owner of a private facility in Arkansas has no legal obligation to host or refuse to host a person seeking to enter a public place with an emotional support animal. The thing is, there are specific laws and regulations that apply, the most important being the Americans with Disabilities Act (“ADA”), the Fair Housing Act (“FHA”), the Air Carrier Act and the Arkansas Department of Health Regulations. for catering establishments.
The Americans with Disabilities Act
The ADA requires public accommodations to make “reasonable modifications” to accommodate people with disabilities.1 These changes include allowing “the use of a service animal by a person with a disability”.2 It is therefore important to understand the difference between service animals and emotional support animals.
First, the ADA limits “service animals” to miniature dogs and horses.3 Second, the animal must be “individually trained to perform work or perform tasks for the benefit of a disabled person.”4 Examples of such tasks include guide dogs for the visually impaired and dogs trained to alert a person with diabetes when their blood sugar is low or to detect the onset of a seizure.
But, service animals are not limited to physical disabilities and can also be used to benefit people with psychiatric, mental or intellectual disabilities.5 For example, an animal can be trained to experience an anxiety attack and take a specific action to help mitigate its impact. Such a definition potentially creates confusion regarding
whether emotional support animals are considered service animals. Thus, the ADA specifically excludes emotional support animals by stating that “emotional support, welfare, comfort, or companionship do not constitute work or chores.”6
What questions can you ask an owner about their service dog?
Since it is often difficult to tell the difference between an emotional support animal and a service animal, business owners may wonder what questions, if any, they can ask the animal owner. A business owner or his staff can only ask if a dog is a service dog if it is not clear that the dog is trained to perform a task for a person with a disability.seven If it’s not obvious, staff can simply ask, “(1) Is the dog a required service animal due to a disability?” and “(2) what job or task was the dog trained for?”8 However, staff should not request documentation, require the dog to demonstrate the task, or inquire about the disability.9 Although a covered entity may not require documentation to show that the animal has been certified, service animals are not exempt from general laws and public health requirements, such as vaccination requirements.ten
The Fair Housing Act and the Air Carriers Act
ADA is not the end of analytics for all businesses. Some businesses such as apartment complexes and airlines may need to consider additional laws to clearly determine whether an emotional support animal is a reasonable accommodation. Although the ADA excludes emotional support animals, the FHA has a broader definition for animals that are considered reasonable accommodations. Specifically, the FHA explains that a service animal includes an animal “that provides emotional support that alleviates one or more identified effects of a person’s disability.”11 Thus, entities subject to the FHA must accommodate emotional support animals. For example, in Apartment Castillo. Ass’n v. US Dep’t of House. & Urban development., HUD filed a discrimination claim against a homeowners association when it refused to allow a resident with anxiety and depression to keep his emotional support animal, and the First Circuit found there was evidence substantial that these actions were illegal.12 Additionally, service animals may extend to animals other than dogs.
At one time, the Air Carrier Access Act also required airlines to accommodate emotional support animals, but that is no longer the case. Instead, the law now more closely aligns with the ADA, requiring airlines to accommodate only service animals. Interestingly, the Department of Transportation announced that this change was partly due to the fact that the majority of reported airborne incidents with animals involved emotional support animals.13
Catering establishments
What about restaurants or public canteens? Arkansas Department of Health regulations for food establishments generally prohibit allowing live animals on the premises of a retail food establishment.14 But the regulations provide for three relevant exceptions. First, a patrol animal accompanying a police officer or security guard is permitted in offices, restaurants, sales and storage areas of a food establishment. Second, service animals controlled and used by an employee or customer with a disability are permitted in areas not used for food preparation that are generally open to customers, such as dining and sales areas. Third, pets are permitted in communal dining areas of institutional care facilities such as nursing homes at times other than during mealtimes if the area is separated from food preparation and storage areas and all surfaces are cleaned before the next meal service. In addition to the three exceptions provided in its regulations, the Department of Health also allows a food establishment to apply for a “Dog Friendly Patio” waiver which, if granted, authorizes the business to allow customers to bring dogs on a leash. in the outdoor dining areas.
Conclusion
In summary, people with disabilities are generally allowed to bring their service animals into virtually any public space. Emotional support animals, on the other hand, are only entitled to special housing in the context of tenants of FHA-regulated housing. The biggest challenge is determining if an animal is truly a service animal or just an emotional support animal. Most people are not well equipped to identify the line between a service animal that supports a person with a genuine emotional disability and an emotional support animal that provides genuine comfort and support to a person who is not disabled. Making this decision is complicated by the fact that the ADA limits the questions one can ask to determine the good faith of the access request and the fact that there is no certification or registry commonly recognized that would help identify qualified service dogs. Thus, this question cannot be answered by searching for a special vest or asking for documentation. Instead, owners and staff should rely on a thoughtful and limited investigation into the tasks performed by the animal an individual wishes to bring into a public facility.
This article originally appeared in Vol. 57 No. 2/Spring 2022 edition of The Arkansas Lawyer and is republished with permission.
1. 28 CFR § 36.302(a).
2. 28 CFR § 36.302(c)(1).
3. 28 CFR §§ 36.104, 36.302(c)(9).
4. 28 CFR § 36.104.
5. 28 CFR § 36.104.
6. 28 CFR § 36.104.
7. 28 CFR § 36.302(c)(6).
8. https://www.ada.gov/regs2010/service_
animal_qa.html.
9. 28 CFR § 36.302(c)(6); https://www.
ada.gov/regs2010/service_animal_qa.html.
10. https://www.ada.gov/regs2010/service_
animal_qa.html.
11. https://www.hud.gov/program_offices/
fair_housing_equal_opp/animal_assistance.
12. 821 F.3d 92, 98 (1st Cir. 2016).
13. https://www.transportation.gov/
sites/dot.gov/files/2020-12/Service%20
Animal%20Final%20Rule%20FAQs.pdf.
14. Arkansas Department of Health
Food rules and regulations
Establishments § 6-501.115(A), accessible
at: https://www.healthy.arkansas.gov/
images/uploads/pdf/Food_Establishments_
Rules_and_Regulations.pdf.
