Tuesday, November 5, 2013

Business going to the dogs?

By: Michael S. Mitchell, Fisher & Phillips

Imagine a big night at your restaurant:  the place is packed with guests, all enjoying themselves.  A diner shows up with an unexpected companion – a dog.  You’re concerned about health regulations and the effect on other patrons.  Politely, but firmly, you tell the guest she cannot enter with the dog.  Either it stays outside or she does.  Any problem?  Yes.  You’ve just politely, but firmly, violated the Americans with Disabilities Act. 

There has been a lot of coverage recently about the changes in the ADA, but this particular area has been around for a long time.  Unfortunately many restaurateurs still seem to get it wrong.

Like Restaurants, These Animals Are in the Service Business
The ADA requires reasonable modification of policies and practices to accommodate disabled individuals with service animals.  Most people think of dogs when they think of service animals, but dogs aren’t all you might conceivably see. Indeed, monkeys, pigs, and miniature horses now may serve this role (though it’s highly unlikely any disabled patron would show up with a miniature horse!). 

Moreover, animals are now trained to provide far more varied services such as hearing or signaling (alerting deaf individuals to sounds); mobility assistance (pulling wheelchairs, picking up things that are dropped, providing stability for walking); and seizure alert/response (alerting owners to impending epileptic seizures or to sounds).

The Department of Justice defines “service animal” as “any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair or fetching dropped items.” 

The DOJ regulations do not require service animals to have a state certification or permit and restaurants may not require proof of certification as a condition of the animal entering.  Nor may restaurants exclude a guest’s service animal because the animal does not meet a state law definition of service animal.  You may, of course, ask the guests whether their disability requires the animal if you cannot visually determine whether or not the animal is a service animal.  Generally speaking, service animals are recognizable by the special harness or collar they wear.

Emotional Rescue
Further complicating the reasonable modification request is the existence of “emotional support animals.”  For example, a patron with a mental disability may ask the restaurant to permit his “emotional support animal.” Unlike service animals, emotional support animals do not necessarily have “task specific training” and are therefore different and treated differently under the ADA. 

That means you may deny guests’ requests for an emotional support animal to stay with them unless a patron with a mental disability can show that the animal has been trained to perform specific tasks to ameliorate the effects of the disability.  In that situation you will be required to grant the request.  So someone who requests that Fluffy or Fido sit at the table with them because “it makes me feel more comfortable” can be turned down. But don’t be too quick to press your rights, even in this type of situation.  Restaurants have gotten bad publicity at times when the patron was an ex-serviceperson suffering from post-traumatic stress disorder, and the animal was a legitimate emotional-support animal.

Additional Rules
Once the service animal is in the restaurant, you may not charge patrons an extra fee because of the animal.  Nor may you require disabled patrons with service animals to use service elevators if your establishment is multi-story.

Of course, restaurants can impose requirements that a service animal not pose a direct threat to the safety or health of others.  But even if a service animal is a direct threat, you should not automatically exclude the disabled patron.  Rather, you should offer the guest the opportunity to dine without a service animal on the premises.  But such situations should be rare, since service animals are unlikely to create safety or threat problems given their specialized training and desensitization to distractions.  The more likely problem is keeping other diners and staff from treating the animal like a pet when the animal is “working.”

Restaurants are not required to grant the accommodation request under the ADA if doing so would significantly or fundamentally alter the nature of the dining experience.  Again, this is unlikely to occur with a service animal, but if it does (for example, if a guide dog barks or is otherwise disruptive) you may exclude the animal – again you should offer the option to the patron of continuing without the service animal).  Finally, the ADA does not require you to permit an animal-in-training to stay in the restaurant nor to permit non-disabled patrons who request to have animals they are training for the disabled to stay with them.

An Animal Checklist
Whether a patron’s request for a service animal is a reasonable modification of your rules requires some thought. In making your decision the restaurant should evaluate the following issues:

  • Is the patron disabled? While certain impairments are easily understood to limit major life activities – paralysis, blindness, deafness – others, such as chronic fatigue syndrome or depression, are not.
  • If there is a disability, is the animal a service animal?  If you cannot determine whether it is, you may ask what tasks the animal has been trained to do.
  • Does the animal ameliorate the problems the patron’s disability causes?  Keep in mind no federal standards exist with respect to answering this question, which would most likely be answered by the patron’s physician in the event of litigation.
  • Will the animal’s presence create a threat to the health and safety of the other patrons?
  • Will the presence of the animal fundamentally alter the nature of the restaurant’s service?

Accommodating a disabled patron is, of course, the right thing to do. It is also the “legal thing” to do, so be sure you have a policy in place covering service animals, and train your staff so that they are aware of and comply with Title III of the ADA.

Mike Mitchell is a partner with the law firm of Fisher & Phillips LLP, and is labor counsel to the Louisiana Restaurant Association.  

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