This week's post comes courtesy of Cairncross & Hempelmann attorney, Margaret Breen and highlights changes to the Washington State and United States definition of "service animal' as it relates to required accommodations in public places, such as hotels, motels and restaurants.
Both the Washington legislature and the U.S. Department of Justice have acted recently to specify what is and is not a service animal requiring accommodation in public places and to limit abuses of the Americans with Disabilities Act by extreme animal lovers.
Under the Washington Law Against Discrimination (WLAD), hospitality providers who own “places of public accommodation” are required not only to permit patrons to be accompanied by service animals, but cannot discriminate by any policy or practice: they may not “treat a person with a disability as not welcome, accepted, desired, or solicited because of their use of a service animal.” You may prohibit pets, but not service animals – and how do you tell the difference? Under WLAD and the ADA, you may ask if the animal is a service animal required by a disability, and you may ask what tasks it performs for its owner. You may not ask for any proof of a disability or for certification of the service animal’s status. Further inquiries may leave a host open to a claim of discrimination.
Because of this risk, until now, most advisors have suggested that, if a guest says that any animal is a service animal, the host should take the guest at his or her word and provide accommodation. And just what is a service animal? Until recently, a “service animal” was very broadly defined to include many types of animals, including exotics and those used for emotional support and companionship. In 2003, for example, the Department of Transportation instituted regulations saying that a service animal could be of any species, and did not need to be specially trained. One woman defended a charge of illegal import by the Arizona Game and Fish Department and countersued, saying that her chimpanzee was trained to bring her sugar during diabetic episodes; a psychotic man was permitted to use a large gray parrot to “talk him down” from manic episodes. Municipalities and merchants’ groups facing monkeys in the grocery store aisles have raised questions about where to draw the line between reasonable accommodations and public health and safety. See, e.g., Skloot, Creature Comforts, New York Times 12/31/2008.
Recent amendments to Title II of the ADA say that only dogs and miniature horses may qualify as service animals; other species are now excluded. See 75 FR § 56193. Moreover, to qualify as a service animal, the dog must actually do “work” or “perform tasks” that are related to its owner’s disability. Emotional support animals – those whose function is merely to provide comfort to their owners – are no longer included. However, hosts must continue to use care: service dogs and miniature horses that perform psychiatric services must still be accommodated. The key in the commentary here seems to be the use of training for specific actions. A dog who is trained, for example, to specifically aid an owner during PTSD flashbacks, for example, would likely qualify.
This change in federal law does not apply in all contexts. The Americans With Disabilities Act incorporates the limits on the definition of a “service animal” to address the policy of the impact of uncontrollable animals on the general public, but the Fair Housing Act, affecting families’ lives more than public interaction, retains the older,much broader definition. The FHA applies to most permanent and semi permanent residences; it doesn’t apply to hotels, motels, and bed-and-breakfasts.
The Washington bill passed in July reinforced the general state prohibition against discrimination in public accommodations against persons with disabilities, specifically including those accompanied by guide dogs or service animals, with an exception for “behavior or actions constituting a risk to property or other persons” , i.e., dangerous and incontinent animals. A host need not accommodate a service animal whose owner cannot control it, or who is not housebroken.
“Service animals” in the state bill include dogs (and, in restaurants, miniature horses) that perform tasks directly related to ameliorating their owners’ physical, mental, psychiatric, or intellectual abilities, for example, by pulling a wheelchair, finding medication, or interrupting a seizure or destructive behavior. Other species are excluded, as are emotional support, companionship, or comfort animals whose mere presence helps their owners.
The new federal and state laws attempt to keep the spirit of nondiscrimination codified by the old ones, and continue to restrict a hosts’ ability to intrude into a disabled person’s health status. However, they attempt to balance the animal owner’s right to equal treatment and to privacy against the public safety and nuisance concerns of wild animals and untrained pets in restaurants, hotels, and other places where the general public is present.
Greg Duff, Editor
Greg Duff founded and chairs GSB’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.