A PRIMER ON SERVICE ANIMAL LAW

By Doug Stevens and Justin Miller 

Understanding what a service animal is and how they should be accommodated is a difficult question often faced by business owners in every industry. Even when the status of a service animal remains in doubt, Colorado business owners must tread carefully before questioning the legitimacy of a service animal. (Read more about the Colorado Court of Appeal’s recent decision on this dilemma here.) 

Service animals help hundreds of thousands of people with disabilities participate in life’s everyday activities. Because of these animals’ critical role, business owners are required by law to make “reasonable accommodations” to allow these animals into their facilities. Increasingly, many people also rely on dogs or other animals to provide emotional support. The increased use of “emotional support” (or “therapy/comfort/companion”) animals has blurred the distinction with service animals, often creating headaches for business owners; particularly in the hospitality and recreation industries and in situations where unfamiliar animals on a property may present safety hazards.  

To better understand what a service animal is under existing law, and how a business owner may properly accommodate them under the law, we have put together the following list of answers to frequently asked questions.  

What is a service animal?  

The Americans with Disabilities Act, or the “ADA,” limits the definition of a service animal to a dog that has been trained to do work or perform tasks for a person with a disability. It does not matter what breed or size a dog is under the ADA. So long as the dog’s training and tasks directly relate to its owner’s disability, the dog can be considered a service animal. Dogs in training do not qualify as service animals.  

Though much less common, miniature horses are also considered service animals under the ADA. The ADA does not recognize any other species as a service animal.  

Does the ADA require certification for service animals?  

No. Many individuals and companies market and sell service animal or emotional support animal certification and registration documents, but these documents are meaningless under the ADA, and the U.S. Department of Justice does not recognize them as proof that an animal has been certified, trained, or licensed as a service animal or an emotional support animal.  

Are emotional support, therapy, comfort, or companion animals considered service animals under the ADA?  

No, they are not. These terms describe animals—and they can be any type of animal—that provide comfort just by being with a person. However, because they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA.  

How must a business owner treat a guest with a service animal or emotional support animal?  

For service animals, the ADA generally requires business owners with a “no pets” policy to modify that policy and allow service animals to accompany their owners throughout their facilities, even in dining rooms or self-service food lines. However, the ADA does not override public health rules that prohibit dogs in places like a swimming pool or a commercial kitchen.  

Hospitality providers, for example, are not obligated to make any accommodations for guests with emotional support animals. You may prohibit guests from bringing their emotional support, therapy, comfort, or companion animals into your establishment.  

How can a business owner tell the difference between a service animal and an emotional support animal?  

Service animals are not required to wear a vest, ID tag, or a specific harness, so determining when a dog is a service animal can be tricky.  

When a business owner cannot tell if a guest’s dog is a service animal, staff may only ask two questions: (1) is the dog a service animal required because of a disability? and (2) what work or task has the dog been trained to perform? Staff cannot ask for documentation, require that the dog demonstrate its task, or inquire into the nature of its handler’s disability. This line of inquiry is expressly prohibited under the law.  

For hotel operators, can you designate rooms for guests with service animals out of consideration for other guests?  

No. Every guest with a disability must be given the same opportunity to reserve any available room as a guest without a disability, regardless of whether they have a service animal. They cannot be restricted to “pet friendly” rooms.  

What about cleaning fees or deposits for guests with service animals?  

The same line of thinking applies here as well: business owners must treat guests with service animals no differently than a guest without a disability. An upfront fee or cleaning deposit for service animals is not allowed. The ADA prohibits charging a guest for cleaning the hair or dander shed by a service animal.  

What if a service animal causes damage to a guest room?  

In that case, a business owner may charge the same fee for damages as charged to other guests.  

When can a service animal be excluded?  

The ADA does not require business owners to accommodate service animals in settings where the presence of the animal would “fundamentally alter” the nature of the business’s goods, services, programs, or activities; whenever there are overriding safety requirements or concerns; or, if the particular animal behaves in a way that poses a direct threat to the health or safety of others, has a history of such behavior, or is not under the control of its handler.  

So, for instance, if someone wanted to let their service dog follow them during a horseback ride on a dude ranch, but the dog’s presence was spooking the horses and putting their riders in danger, a business owner can likely deny the guest’s request without violating the ADA’s provisions. However, a business owner could not deny such a request merely because, say, the guest’s service animal was a pit bull, and such dogs have a reputation for being aggressive. This would be a decision based on stereotypes, which is forbidden by the ADA.  

What can my staff do when a service animal is being disruptive?  

A business or staff member may request removal of a service animal when it is out of control and the handler does not take effective action to control it.  

Can a guest leave a service animal in their hotel room unaccompanied?  

A service animal should remain under their handler’s control at all times, and nothing under the ADA requires a business owner to grant a request to leave a service animal unattended in a guest’s room. These requests may be denied or granted without violating the ADA. 

For additional information about these issues regarding service animal law, contact attorneys Doug Stevens and Justin Miller.