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.
It’s not too late to attend this year’s LRA SIF seminar, “Workers’
Compensation Claims Management.” The seminar reveals strategies to use before,
during and after a workers’ compensation claim to reduce negative effects on
your business and control claims costs. 
.jpg)