LEGAL VIEW: Service animals in the office: How to make the right moves

By James Reinhart The Daily Record Newswire A leashed dog entering an office building can be a cheery sight, but one wrong move by a building manager could leave the landlord facing a $50,000 civil penalty under the Americans with Disabilities Act. In addition to possible state fines and penalties, such are the stakes for landlords navigating federal and state laws regarding service animals. Under the ADA, places of public accommodation -- such as office buildings -- must have modified practices and procedures to permit the use of service animals by disabled people in all public areas. Many buildings and most leases do not allow pets, and those that do often charge a pet fee. Landlords cannot require tenants or patrons who use service animals to pay a fee for allowing the service animal, even if they normally charge one. Given the increasing number of people seeking to bring their pets into office buildings and other public areas (even going so far as to buy "service animal" vests online), distinguishing between ADA-protected "service animals" and regular pets is increasingly difficult. A year ago, the definition of "service animal" was narrowed in ADA regulations to "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability." The ADA also protects a disabled person's use of a trained miniature horse, but no other animals qualify under the ADA. "Service dogs" include those trained to provide support for sensory, psychiatric, intellectual, mental or physical disabilities. In contrast, the ADA does not protect an animal whose primary role is to provide "emotional support, well-being, comfort or companionship." So how can the two be distinguished? The ADA lets landlords and office managers to ask only two questions: 1, Is the animal required because of a disability? and 2, What work or task has the animal been trained to perform? However, these two questions should not be asked if it is clear that the animal is trained to perform specific protected tasks. Many service dogs wear a vest that indicates their roles. Under the ADA, landlords also are prohibited from inquiring about the nature or extent of the person's disability, or requiring proof of the service animal's documentation, certification or training. The landlord does have some rights. Even a service animal can be removed from the premises if the animal is not housebroken, or if it is out of control and the handler does not control it. Landlords are not responsible for the care or supervision of a service animal, and landlords can require that the handler pay for damage caused by the service animal if the landlord normally charges individuals for the damage they cause. When a service animal is properly excluded from the premises, the disabled person should be given an opportunity to re-enter without the service animal. Advance training of these animals in real-world situations is critical to their success. In order to avoid civil or criminal liability and to best accommodate disabled people and their service animals, landlords should have a written policy incorporating state and ADA rules. The responsibility for complying with these laws should be allocated between businesses and landlords in their leases or other contracts. Businesses also should provide proper training for office mangers and security guards to help ensure compliance. ---------- James Reinhart is an attorney in the Portland office of Davis Wright Tremaine LLP. He focuses on commercial real estate transactions. Contact him at 503-778-5288 or jimreinhart@dwt.com. Published: Mon, Mar 26, 2012