Service Animals and Assistance Animals Anna Elento-Sneed Sam M.P. Sneed December 2015 envision, strategize and actualize

Disclaimer This presentation is provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult an attorney if you have specific legal issues. Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

  Overview of Accommodation Obligations   = Accommodate   = No duty Public Access Area Tenant Common Area Tenant Living Quarters Employee-Only Areas Employee-Only Areas w/ Health/ Safety Requirements Qualified Disabled Person Employee Service Animals   IF tenant or IF access is part of job  IF access is part of job  IF direct threat/ undue hardship Assistance   IF tenant Public Assistance Animals Service Animals  UNLESS closed to tenants Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Includes “Comfort,” “Therapy” or “Emotional Support” Animals What’s the Difference? Assistance Animals Includes “Comfort,” “Therapy” or “Emotional Support” Animals Service Animals Any animal Need not be trained Alleviates 1+ symptoms/ effects of disability by working or performing tasks, or providing assistance or emotional support Tenant/ resident areas only May impose reasonable restrictions Dog or mini horse Trained to do work or perform tasks directly related to person’s disability Must be under handler’s control and housebroken Public, tenant/ resident, or employee areas, depending on person seeking accommodation Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Overlapping Legal Obligations Employees Tenants Public EMPLOYEES & PUBLIC Americans with Disabilities Act (ADA) FDA Food Code CDC Guidelines EMPLOYEES & TENANTS Rehabilitation Act of 1973 (Rehab Act) ADA Title I ADA Title III HI Law for the Blind HI Public Accomm. Law Fair Housing Act Rehab Act, § 504 HI Discrimination in Real Property Transactions Act Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Employees Public Tenants Employees How to accommodate ADA Title I ADA Rehab Act ADA Title I ADA FDA Regs CDC Regs Public Tenants Employees Employees Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Employee Accommodation Checklist Exceptions Alternative accommodation? Direct threat? Undue hardship? Interactive Accommodation Process Does the doctor “prescribe” the service animal? Check Individual Is employee a Qualified Individual with a Disability under ADA? Check Animal Is the animal a service animal? Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Who is Protected Qualified persons with a current impairment are entitled to reasonable accommodation Identify a “QID” Impairment – physiological, mental, or psychological disorder or condition Disabling – impairment substantially limits performance of major life activity or bodily function Essential Function – prevents performance of essential function of the job Accommodation – find reasonable accommodation to enable QID to perform essential job function Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Employee Accommodation - Interactive Reasonable Accommodation Process QID asks for accommodation Employer, QID & doctor identify precise job-related limitations Employer, QID & doctor identify possible accommodations QID indicates preference, but employer makes ultimate decision Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Exceptions to Duty to Accommodate – Undue Hardship/ Burden “An action requiring significant difficulty or expense” Factors to consider: Nature and cost of accommodation Impact on financial resources of facility and company as a whole Impact on facility operations Impact on CBAs or civil service laws Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Exceptions to Duty to Accommodate – Direct Threat “Significant risk of substantial harm to the health or safety of the person or others that cannot be eliminated or reduced by reasonable accommodation” Individualized assessment Factors to consider: Duration of risk Nature and severity of potential harm Likelihood of potential harm Whether risk can be eliminated/ mitigated below the level of direct threat Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Considerations for Food Service and Medical Service Areas ALLOW EXCLUDE Food Prep Areas Public dining or self-service food areas Communal food prep areas (NOTE: Employees may handle their service animals outside food prep areas IF employees wash hands before handling food) Seating at dining areas (service animals should NOT be fed at the table) Food preparation areas restricted to employees only Medical Service Areas Areas that humans are allowed into without additional precautions Environmentally controlled areas requiring PPE (gowns, masks, gloves, etc.) Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

HI Public Accommodations Law How to accommodate the ADA Title III HI Law for the Blind HI Public Accommodations Law ADA FDA Regs CDC Regs Public Employees Tenants PUBLIC Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Public Accommodation Checklist Exceptions Alternative accommodation? Direct threat? Check Facility Undue hardship Fundamental alteration? Check Animal Is the animal a service animal? Does animal enable person to enjoy facility? Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

How to Check if an Animal is a Service Animal Look – Is the animal a dog or mini horse? Ask – You may only ask the following: Is the animal required because of a disability? What work or task has the service animal been trained to perform? You May Not: Ask the above when it is obvious that an animal is trained to do work for an individual with a disability Require documentation or charge extra fees EXAMPLE of when obvious – can see dog is guiding blind/low-vision individual; dog pulling wheelchair; dog assisting with balance for person w/ observable mobility disability EXAMPLE of documentation – certification for dog, proof of training, etc. Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

If You Exclude an Animal from a Member of the Public You MUST give the person an opportunity to access the public accommodation Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Discrimination in Real Property How to accommodate Rehab Act Fair Housing Act Discrimination in Real Property Tenants Public Employees Tenants Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Tenant Accommodation Checklist House Rules Reasonable restrictions on service or assistance animals Exceptions Alternative accommodation? Direct threat? Undue hardship? Check Individual Does tenant have disability or disability-related need? Can treating health professional or social worker verify need? Check Animal Is the animal a service animal or assistance animal? May verify with treating health care professional, mental health care professional, or social worker Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Examples of Reasonable Restrictions on Assistance Animals Observe laws (e.g. leash or pick-up laws) Require vaccination with documentation Assume responsibility for damage Clean the animal’s waste Clean/ restore housing to original state (minus reasonable wear and tear) Keep animal under physical control Leash/ cage/ carrier in common areas, OR Other control if impractical due to disability Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Hypothetical: Employee-Tenant Service Dog Comfort Cat May access: Areas open to public Areas open to tenants Areas open to employees May exclude/ remove if: Handler can’t control Dog Dog is not housebroken Dog creates direct threat or undue burden that can’t be mitigated May access: Areas open to tenants May exclude/ remove if: Cat will cause substantial damage to property Cat creates direct threat or undue burden that can’t be mitigated May impose reasonable restrictions on Cat Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Hypothetical: Prospective or Current Tenant Service Dog Comfort Cat May access: Areas open to public Areas open to tenants May exclude/ remove if: Handler can’t control dog Dog is not housebroken Dog creates direct threat or undue burden that can’t be mitigated May access: Areas open to tenants May exclude/ remove if: Cat will cause substantial damage to property Cat creates direct threat or undue burden that can’t be mitigated May impose reasonable restrictions on Cat Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018

Hypothetical: Non-Tenant Client or Customer Service Dog Comfort Cat May access areas open to public May exclude/ remove if: Handler can’t control dog Dog is not housebroken Dog creates direct threat or undue burden that can’t be mitigated Dog fundamentally alters facility Offer alternative accommodation No duty to accommodate *Remember: Only dogs or mini horses can be classified as service animals. Leashes, jackets, or papers do not make an animal a service animal. Copyright 2015 ES&A, Inc. All Rights Reserved Confidential and Proprietary November 22, 2018