This article is part of CLM's publication Professional Times magazine, a production of CLM's Management & Professional Liability Community. Click to view previous digital editions of Professional Times.
According to a Census Bureau Report from 2010, almost one in five people in the United States had some form of disability. This translates to approximately 56.7 million people, or 19 percent of the U.S. population. Moreover, more than 50 percent of those who reported that they were disabled characterized their disabilities as severe. Even more alarming, estimates from theNational Alliance on Mental Illness document that one in four Americans, or 61.5 million people, will suffer from a mental or emotional disability this year. Many rely on animals for support.
In light of the fact that the definition of a disability has evolved and expanded, it is critical to understand and appreciate the statistics related to disabilities and their significance. Additionally, and quite importantly, there has been a direct correlation between the increase in the number of individuals with disabilities and their need and requests for service animals and emotional support animals. These service and emotional support animals are needed not only in the workplace, but also in places of public accommodation, residential housing projects, apartments, on airlines, and practically anywhere people may be expected to go.
In order to accommodate foreseeable and legally required special requests, one must understand and appreciate the difference between emotional support animals and service animals. Emotional support animals, also referred to as comfort animals and therapy dogs, are not service animals under Title II and Title III of the Americans with Disabilities Act (ADA). Support animals provide companionship, relieve loneliness, and help with depression, anxiety, and certain phobias. These animals do not require any specialized training. They commonly include dogs, cats, and even pigs.
In stark contrast to emotional support animals, service animals are individually trained to do work or perform tasks for the benefit of an individual with a disability (physical, sensory, psychiatric, intellectual, or other mental disability). While most service animals are dogs, there is no express limitation to the type of animal that can be trained to service disabled people. In fact, the law has expanded to even include miniature horses, which can be bred and trained to assist persons with disabilities. The tasks for which service animals are trained include pulling a wheel chair; retrieving a dropped item; alerting a person to a sound that reminds them to take medication; pressing an elevator button; alerting a diabetic to an imminent event related to the person’s disease; and alerting disabled people to the onset of other conditions such as a stroke or seizure.
It is important to note that, under the ADA, the line of permissible questions for service animals vary greatly when those questions are posed in the workplace versus places of public accommodation. An owner, employee, or other person associated with a business can lawfully ask only two questions regarding the company’s obligation to accommodate its customers: Is the dog (or other service animal) a service animal required because of a disability? What work or task has the dog (or other service animal) been trained to perform? Questions that are absolutely prohibited include inquiries concerning the nature or degree of the person’s disability; requests for medical documentation related to the disability; requests for medical identification; requests for proof of the animal’s training, such as requests for a training card for the animal; and inquiries about how the animal’s training is working in practice.
Employers and others related to the workplace are permitted and encouraged to ask many more questions than operators of places of public accommodation. An employer must treat these requests like any other request for accommodations. Additionally, employers are permitted to demand documentation on the condition/disability, limitations caused as a result thereof, and the needs of the person seeking employment and special accommodations. Employers may also set boundaries and expectations for the employee. Employers must be mindful of what can and cannot be said to or asked of other employees. They should also appreciate the concerns and issues of all employees, including such matters as allergies, religious issues, and others.
An individual may qualify for an emotional support animal for many different reasons. Some include, but are not limited to:
- Post-traumatic stress disorder.
- Anxiety.
- Depression.
- Fear or phobia.
- Panic disorder.
- Mood disorder.
- Personality disorder.
- Seasonal affective disorder.
- Social anxiety disorder.
While emotional support animals are not service animals, special accommodations still need to be made. Housing providers must be informed of their legal obligations when requests for accommodations are received. The failure to be educated and informed can lead to legal jeopardy. A housing provider must provide a reasonable accommodation when a letter verifying the disability and need for the animal is provided. The landlord cannot question whether the person suffers from a disability or inquire about the nature or extent of the disability. Housing providers must not retaliate against their tenants in any way as a result of their obligations to provide requested accommodations.
The following housing providers are exempt from these requirements and may refuse to make accommodations for emotional support animals: Buildings housing fewer than four units where one of those units is occupied by the landlord; private clubs; and single-family houses sold or rented without a real estate broker.
While the ADA does not define emotional support animals in the same way as it defines service animals, there seems to be a movement toward treating such animals in similar ways. Regardless of the ultimate outcome under the ADA, make no mistake that, regardless of whether the accommodation requested relates to service animals or emotional support animals, accommodations are required by law. The failure to accommodate could result in the assessment of violations, the imposition of hefty fines and penalties, and exposure to expensive and unwelcome lawsuits.
So, whether it’s raining cats and dogs or if pigs can fly, remember to accommodate. While in some regards it might seem impractical or downright hogwash, nonetheless, it’s the law.
The authors would like to thank Peter Petsch for his contributions to this article.
SIDEBAR
Defining Traits
While there is no single generally accepted definition of a disability, standard dictionaries define the term “disability” as a physical or mental condition that limits a person's movements, senses, or activities. Critically, a disability is characterized as a disadvantage or handicap, especially when it is one imposed or recognized by law.
The term or concept of a disability is often used in connection with the Americans With Disabilities Act of 1990. In this regard, it is important to note that the term “disability” is more of a legal word than a medical one. One must also appreciate that the ADA’s definition of disability is different from how the term “disability” is often defined under other federal or state statutes, rules, regulations, or ordinances.
According to the ADA National Network, a person with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. The ADA makes it unlawful not only to discriminate against those suffering from some form of disability, but also prohibits discrimination against any person based on that individual’s association with a person with a disability.