Service and support animals: What Colorado businesses need to know
Canines and miniature horses need apply
Most businesses welcome service animals without hesitation. In part, this is because they recognize that Article III of the Americans with Disabilities Act (ADA) requires places of public accommodation, which covers most businesses open to the public, to allow service animals. As such, companies can face substantial fines and liability for attorneys’ fees if, as places of public accommodation, they deny access.
In many instances, however, it is not readily apparent whether a customer’s animal is a bona-fide service animal under the ADA, an emotional support/assistance animal or someone’s pet. There is confusion about whether businesses must allow entry to emotional support/assistance animals; whether businesses can ask questions about an animal; or whether company heads can ultimately refuse an animal access under certain conditions.
Based on guidance issued by the U.S. Department of Justice (DOJ), here is a breakdown of what businesses generally can and cannot do in handling these situations.
First, the ADA only requires places of public accommodation to allow “service animals” to accompany people with disabilities to all areas usually accessible to the public (this includes restaurants and food markets). A place of public accommodation may only refuse a service animal access if doing so would result in a “fundamental alteration or jeopardize the safe operation of the public accommodation.”
There is no requirement under Article III of the ADA for businesses to allow emotional support animals, also called comfort animals or assistance animals. However, under the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and the Air Carrier Access Act, broader definitions of “service animal” and “assistance animal” apply. If these statutes apply to your business, you may be subject to different standards.
Second, the ADA only recognizes dogs and miniature horses as service animals. Businesses have no obligation to allow customers to bring other types of animals on their premises.
Third, service animals are individually trained to do work or perform specific tasks directly related to a person’s actual disability. Animals whose sole function is to provide comfort or emotional support do not qualify as service animals for purposes of public access under the ADA.
Because it is not always obvious what work an animal may be trained to perform, the DOJ says it is permissible for a business to ask only the following two questions:
- Is the dog (or miniature horse) a service animal required because of a disability?
- What work or task has it been trained to perform?
If the answer to the first question is yes, the business generally must allow the animal access. If the answer to the first question is no, the business can deny access to the animal.
A business cannot ask questions about the person’s disability or ask that the animal demonstrate its ability to perform what it has been trained for. The second question should only be used to gain an understanding of what tasks the animal might perform while on the premises, not as an effort to screen qualified service animals from other types of animals.
Fourth, the ADA does not require documentation to prove an animal is a bona-fide service animal and a business may not ask for paperwork. There is no requirement for service animals to wear special vests, bandanas or collars identifying them as service animals. While it is relatively easy to purchase official-looking paraphernalia and documentation online, these items have no bearing on whether an animal is a qualified service animal under the ADA.
Under these guidelines, there is an obvious risk that people will misrepresent non-qualifying animals as service animals. To address this increasing problem, Colorado recently passed a law criminalizing the intentional misrepresentation of a service animal. A person who intentionally misrepresents an animal as a service animal when it is not can face a fine of up to $200, under the law, which went into effect in January.
Finally, service animals must be under the effective control of the handler and housebroken. If a service animal is not, a business can ask the handler to remove the animal.
One final note: For purposes of the employment discrimination provisions of the ADA, there have been recent indications from several regional offices of the Equal Employment Opportunity Commission that the agency may not accept these DOJ limitations on the definition and use of emotional support animals. So employers should undertake a careful legal analysis if employees ask to bring these animals to work. Relying on the logic and precedent of the DOJ public access pronouncements may not be the end of the issue in the employment context.
Steven W. Suflas is Managing Partner of Ballard Spahr’s Denver and Boulder offices and a nationally recognized thought leader on labor and employment issues. Rachel R. Mentz is an experienced trial attorney in the Denver office who works with clients to resolve complex disputes both in and out of court.