New Jersey’s Law Against Discrimination and the Americans With Disabilities Act both permit the use of service dogs anywhere an individual with a disability is permitted. Beyond the familiar harnessed seeing eye dog, these animals can be trained to pull a wheelchair, retrieve dropped items, alert of an impending seizure or calm a person with Post-Traumatic Stress Disorder. Without a doubt, these animals are essential to the individuals they serve. But what happens when the dog’s purpose is not clear and the line blurs between “service animal” and “pet?” How can the law balance the needs of the disabled with the rights of businesses to operate free from disruption?
The Americans with Disabilities Act specifically provides that a dog whose sole function is to offer comfort or emotional support is not a service animal. Although New Jersey law does not address the issue directly, it generally mirrors the ADA. Under ADA regulations, dogs that provide emotional support or comfort are, by definition, pets and can be excluded from properties that do not accommodate pets. The property owner must determine whether the dog’s sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or promote emotional well-being. If that is a particular dog’s purpose, it’s a pet, not a service animal.
If a guest arrives with a golden retriever in a seeing eye harness, or a German Shepherd leashed to a wheelchair, then it is a safe bet that the dog is a service dog. But what if someone arrives with a tea cup Chihuahua snuggly tucked in her purse? How can your personnel address the situation? Interacting with guests who claim they need a service dog on the premises requires sensitivity and respect, particularly when a supposed disability is not obvious. If a staff member is unclear whether an dog is a service dog, the staff member may only ask two questions: (1) whether the dog is a service animal required because of a disability, and (2) the nature of the work or task has the dog been trained to perform. Staff cannot ask about the nature of a person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task. As a practical matter, this means that if the individual states that the dog is trained to sense seizures or intervene during PTSD flashbacks, then the dog must be allowed on the premises. However, if the individual says she needs the dog for emotional support or comfort, then the staff can refuse to accommodate the dog without violating the ADA or NJLAD. Most people who have pets have them for emotional or comfort purposes – that does not mean every pet is a service animal.
Even if a dog qualifies as a “service dog,” business owners can exclude an otherwise-qualified service animal if the animal is out of control and its handler does not take effective action to control it, or if the animal is not housebroken. If the dog has an “accident” on the property, then the business is within its rights to ask the dog’s handler to remove the animal from the premises, and the animal’s handler is liable for any damages. Of course, the individual is welcome to remain on the premises, but he or she must find other arrangements for the dog. Following these guidelines will allow businesses to respectfully accommodate service animals without going to the dogs.
Lindsay S. Switzer is an associate in Cooper Levenson’s Labor and Employment Law Practice Group. Lindsay is based in the firm’s Atlantic City office.
For more information, contact Lindsay at firstname.lastname@example.org.