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

2. 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.
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November 22, 2018

3.   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
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November 22, 2018

4. 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
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November 22, 2018

5. 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
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November 22, 2018

6. 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

7. 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

8. 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
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November 22, 2018

9. 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

10. 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
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November 22, 2018

11. 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
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November 22, 2018

12. 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

13. 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

14. 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

15. 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.
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November 22, 2018

16. 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

17. 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

18. 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
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November 22, 2018

19. 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
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November 22, 2018

20. 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

21. 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

22. 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