Disabilities in the workplace is one of the most challenging areas for any employer; for restaurants and other hospitality employers who regularly interact with the public it is often even more challenging.
One hot topic that arose last week in the news is how should a restaurant, nightclub or hotel handle a guest with a service animal. Unfortunately, there is a lot of misinformation in the public about service animals, not least of which is often promulgated by the animal’s owner. This post will touch on some of the biggest truths and myths when it comes to service animals in your establishment and how they are addressed under the federal Americans With Disabilities Act (ADA).
TRUTH: “Service Animals” are limited by ADA regulation to just dogs.
In the past some restaurants have reported guests who have tried to bring in a menagerie of animals including ferrets, goats, pigs, monkeys, an iguana, duck, snakes and other animals as service animals. However, recent revisions to the regulations have curtailed what had been a very open-ended definition of service animal. The U.S. Justice Department now limits service animals to dogs without any limitation on size, weight or breed. However, under a separate regulation miniature horses are allowed to accompany guests with disabilities (although an establishment has greater discretion to determine whether “reasonable” modifications can be made to a specific facility to allow a miniature horse).
MYTH: A service animal must have a government issued certification.
There is no certification issued by any legitimate government agency in order to consider an animal a “Service Animal”—the animal simply needs to be appropriately trained.
MYTH: The ADA permits service animals for “therapy”, “emotional support” and “comfort” reasons.
Under the ADA and corresponding regulations a service animal must be “trained to do work or perform task.” While “emotional support” animals are not permitted, “psychiatric service animals” are permitted by law where they perform tasks such as detecting and preventing or interrupting impulsive or self-destructive behavior. Service animals typically perform tasks such as: pulling wheelchairs; provide balance; retrieve items; assist individuals with seizures; alert people of the presence of allergens; alert deaf or blind people of hazards.
Employees often are concerned about what questions they can ask a guest or visitor to the workplace with a service animal.
The questions are very limited; there are quite frankly two areas of inquiry:
1. Is the animal required because of a disability?
2. What work or task has the animal been trained to perform?
The list of questions that an employee cannot ask a guest or visitor with a service animal is much longer:
- Do not ask dumb or obvious questions. For instance, if it is obvious that the service animal is there to guide a visually impaired person, do not ask what the animal is trained to do.
- Never ask about the nature or extent of an individual’s disability.
- Never “card” a service animal or otherwise ask for proof that the service animal has been certified, trained, or licensed as a service animal.
What can a business expect from an guest with a service animal?
Several things. Typically, the animal should be under the control of the handler by harness, leash, or other effective means. A restaurant or hotel also has the right to exclude a service animal that might be out of control or not housebroken. If such situation should occur the establishment should offer the guest the opportunity to obtain services without having the animal on premises. Importantly, the restaurant is also not responsible for the care of the animal and does not have to “walk it.” Finally, it should be obvious but a restaurant can not impose any type of surcharge or otherwise treat the guest differently because they have a service animal.
Carolyn is the co-chair of Fox Rothschild’s Hospitality Industry Practice, chair of the New York employment group and counsel to the NYC Hospitality Alliance. Her practice largely consists of representing and counseling employers in the hospitality industry, specifically restaurants, hotels, caterers, night clubs and fitness centers. Carolyn has extensive experience litigating wage and hour class actions and employment discrimination cases and regularly counsels clients in workplace issues, including non-compete agreements, employee relations and regularly conducts anti-harassment and diversity training sessions.