Article from the October 2019 Issue of the Pennsylvania Observer

“So a man and a dog walk into a bar … ” What might sound to some like the start of an old­fashioned bar joke is no laughing matter for those with disabilities or the businesses required to accommodate them. Assistance animals are becoming increasingly common and may be referred to by varying terms, such as service animals, therapy animals, and emotional support animals. The extent to which assistance animals are protected legally varies depending upon the animal’s purpose, species and training. Unfortunately, navigating these legal protections can be challenging, and improper handling of requests by individuals with service animals can subject business owners to legal liability, as well as a potential public relations nightmare.

In the food service industry, which is held to health and cleanliness standards beyond those applicable to most other retailers, business owners might be tempted to assume they have greater latitude to refuse service to individuals who attempt to enter with service or support animals due to numerous restrictions imposed by state and local health codes. This assumption is incorrect, however, and such refusals can have serious consequences.

The primary laws governing assistance animals for Pennsylvania businesses are a federal statute, the Americans with Disabilities Act (ADA), and a state statute, the Pennsylvania Human Relations Act (PHRA). Business owners should also be sure to check to determine whether any local ordinances may apply.

Under the ADA, generally only dogs (and in some limited circumstances miniature horses) are recognized as service animals. The ADA provides broad protections for service animals, and requires the following:

• Businesses and organizations must permit service animals in all areas where the public is permitted.
• Allergies and fears of service animals are not valid reasons to refuse access or service.
• The ADA’s requirements supersede all state and local health codes – so restaurants and other food service providers may not refuse service or access on that basis.
• Persons with service animals may not be treated differently from other patrons – e.g. isolated from other patrons, charged an additional fee, or in any manner treated less favorably than other patrons.
• Service animals must be harnessed, leashed or tethered, unless the person’s disability prevents such implements, in which case the service animal need only be under the person’s control, such as by voice commands or hand signals.
• The only valid reasons a business may exclude a service animal are situations where the’animal is not under the person’s control, the animal is dangerous or poses an immediate threat to others, or the animal is not housebroken. Even in situations such as these, the business may not simply eject the individual, but must offer alternatives for the person to obtain services – e.g. offering take-out or an opportunity for the person to return without the animal for service.

Under the ADA when evaluating only those situations where the service animal’s purpose is not obvious – businesses are limited to asking two questions of persons with service animals:

1. Is the service animal required because of a disability?
2. What work or task does the animal perform?

Businesses may not inquire regarding the nature of the person’s disability, and may not require medical documentation or certification regarding the animal’s service status or abilities. Business owners also may not require the person or animal to demonstrate any work or task.

To further complicate matters, the PHRA – which applies to all businesses with more than 4 employees operating in Pennsylvania – provides even broader coverage than the ADA. The PHRA does not limit coverage to dogs and miniature horses – meaning that other species arguably are covered bv the Act. The PHRA also does not use the term “service animal” – instead using the more expansive phrase “guide or support animal” – which may include emotional support animals whose purpose is to provide generalized comfort to an individual with a disability, rather than being trained to provide a specific service. The PHRA does recognize exceptions similar to those under the ADA with regard to refusing allow animals not under control or who pose a direct safety hazard.

The result of these differences is that while businesses may ask the ADA permitted questions above, in Pennsylvania they likely cannot legally refuse service to someone with an animal because the animal does not perform specific work or a specific task.

So how should a business respond to requests by patrons to enter a bar, restaurant or other food­service establishment with a service or comfort animal?

First, given the overlap between the ADA and PHRA, business owners in Pennsylvania are in a gray area if they attempt to exclude all animals other than dogs and miniature horses on the basis that other species are not covered by the ADA – because there is no such exclusion under the PHRA. Does that mean that someone can bring an emotional support pig into your restaurant? Unfortunately, the answer is … maybe.

The business certainly may ask if the animal is required because of a disability. If the answer is yes – provided the pig is under the person’s control, housebroken, and poses no clear threat to other patrons – it may be difficult to legally refuse the request.

Overall, given the current law in this area, businesses should exercise caution when handling service or comfort animal requests. Staff should be trained to ensure they are not asking questions beyond those permitted by law and are not demanding documentation. Moreover, given the potential for liability, decisions to refuse access should only be made by senior management. In cases where the facts are unclear or if a business owner has any doubts, the best way to limit exposure is to consult with legal counsel.