By Kathleen Pohlid and WAKEUP CALL
A well-trained hotel staff can make the critical difference between fostering or chilling guest relations, as well as, Americans with Disabilities Act compliance or liability. This principle is especially true with respect to the issue of accommodation of the use of service animals by persons with disabilities. Hotel establishments should ensure they develop policies and train their staff on accommodation of service animals.
The ADA, enacted in 1990, prohibits discrimination against individuals with disabilities and their companions and applies to facilities of public accommodation including hotels. On July 23, 2010, new amendments to the Americans with Disabilities Act were issued which include provisions relating to accommodation of service animals. Those provisions, published in the Federal Register on September 15, 2010, went into effect on March 15, 2011.
One area of potential ADA liability arises when employees, who are trained not to permit pets in an establishment, are not adequately trained on the ADA requirements for accommodation of service animals. Hotel staff should know the distinction: service animals are not pets.
A settlement between the U.S. Attorney’s office and a Sacramento hotel last year shows the importance of hotel staff understanding this distinction. Despite being informed at check-in that a hotel guest was traveling with a service animal, the hotel allegedly treated the animal as a pet. The complaint alleged the hotel failed to modify its policies to allow service animals without requiring individuals with disabilities to pay the pet deposit, to assign them to a pet floor, and to subject them to the hotel’s pet policy. Hotel staff must ensure that service animals are excluded from their pet policy.
Definition of “Service Animal”
When ADA requirements first came into effect, few anticipated that some individuals would promote a variety of species as service animals, ranging from ferrets, pigs, snakes, iguana, and parrots. The increasing use of wild, exotic or unusual species, many untrained, as service animals caused confusion and raised accommodation issues. The new amendments resolve these issues, confirming that dogs are the only animal species which can qualify as a “service animal.”
Furthermore, in order for a dog to qualify as a “service animal,” the work it performs must be “directly related to the handler’s disability.” The provision of emotional support, well-being, comfort, or companionship is specifically excluded from this definition. However, service animals are not limited to assisting those with hearing or sight disabilities. They may also assist individuals during a seizure, alerting them to allergens, pulling wheelchairs, or helping them with psychiatric and neurological disabilities.
Although dogs are the only species of animal included within the ADA definition of “service animal,” the ADA amendments require establishments to make reasonable modifications to permit the use of miniature horses which have been individually trained to do work or perform tasks for the benefit of an individual with a disability.
Miniature horses are trained to provide a range of services to their handlers, such as pulling wheelchairs, providing stability and balance and guiding individuals who are blind or have low vision. The ADA amendments set forth the following factors to consider in assessing whether such accommodation should be made for a miniature horse: (A) the type, size and weight of the miniature horse which the facility can accommodate; (B) whether the handler has sufficient control of the miniature horse; (C) whether the miniature horse is housebroken; and (D) whether the miniature horse’s presence in a specific facility compromises the legitimate safety requirements that are necessary for safe operation.
Hotel establishments should be aware that although the ADA only addresses accommodations for service dogs and qualifying miniature horses, state laws and laws of other jurisdictions may provide provisions for accommodation of other species to assist individuals with disabilities. Consult with legal counsel prior to drafting an ADA accommodation policy.
Permissible Inquiries & Accommodation of the Animal
The ADA amendments specify two inquiries which a facility may make concerning a service animal: (1) they may ask if the animal is required because of disability, and (2) they may ask what work or task the animal has been trained to perform. However, they may not make these inquiries when it is readily apparent that the animal is trained to perform service tasks.
Keep in mind in many cases it may not be readily apparent that the person has a disability. Therefore, hotel staff should not assume that because a person does not appear to have a disability that the dog they have under a leash is not a service animal. If it is not readily apparent, staff should only make the permissible inquires above.
Hotels may not assess an extra fee to individuals because of their use of a service animal. Nor may they exclude the service animal from any area of the hotel open for public access even if pets are not allowed in those areas. Generally, it is accepted practice to allow individuals with disabilities to go with their service animals to same areas of a hotel as members of the public. If, however, a hotel has a practice of charging its non-disabled guests for cleaning or repairing damaged furniture, the hotel may charge its customers with disabilities if a service animal causes the same type of damage.
Hotel staff are not to pet, feed or distract a service animal. Nor is hotel staff required to provide care or food and water for a service animal. Although the ADA regulations do not set forth a requirement to provide a special location for a service animal to relieve itself, designating a discrete location for such purpose may be preferable to handlers using less preferred areas.
Hotel staff should never inquire as to the extent of a person’s disability. Nor may they require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. What if other guests complain?
If a guest complains or inquires about a service animal, hotel staff should inform them that the animal is not a pet, but is an animal trained to assist a person with a disability and that the law requires accommodation to be made for such animals. For example, although guests may complain because of allergies or fear of dogs, the ADA does not recognize these as valid reasons for refusing accommodations to individuals with service animals. Instead, consider as an option, offering the complaining guest with accommodations in alternative locations within your facility.
Grounds for Removal of Service Animals or Qualified Miniature Horses
Animals, which are otherwise qualified to assist persons with disabilities, may be removed if either: (1) the animal is out of control and their handler does not take effective action to control it; or (2) the animal is not housebroken. However, before taking action to remove the animal, consider whether the animal has been unnecessarily provoked. If the animal is removed, hotel staff should ensure that the individual is informed that services will be provided to them without their animal. Even if a service animal is removed based on valid reasons, a hotel must nevertheless provide services or lodging accommodations if an individual with a disability so desires.
A facility is not responsible for the care or control of a service animal. The handler must maintain control of the service animal at all times either by means of a harness, leash or similar device. Hotel staff should not assume, however, that because there is an absence of a tether, that a service animal is not under the handler’s control. A service animal may otherwise be under the handler’s control by means such as voice control, signals or other effective means.
In addition to developing policies for accommodation of animals to assist persons with disabilities, hotels must take the extra step to ensure staff are adequately trained and understand their responsibilities. This is especially important for staff that engages the public as their response can make the difference between the perception of accommodation or non-accommodation of guests with disabilities.