What rights do employees of tenants or other occupants of office buildings have to bring service animals and emotional support animals into New York City office buildings? What rules and restrictions can the owners of office buildings impose? What questions are building owners permitted to ask about the animal and its owner? Are there any limits on the types of animals that owners must permit in their building?
Under New York State law, a service animal means any dog that has been or is being individually trained to do work or perform tasks for the specific benefit of a person with a disability. An animal that qualifies as a "service" dog under New York law would generally also be considered a "service" animal under the Americans with Disabilities Act (ADA). Further, the Justice Department has interpreted this protection to also include miniature horses.
Emotional Support Animals
Under New York State law, an emotional support or therapy animal means any animal that aids in the emotional and physical health of patients in hospitals, nursing homes, retirement homes and other settings and is actually used for such purpose and does not qualify under federal or state law or regulations as a service animal.
If the animal's presence is only to provide comfort and not to take a specific action to assist its disabled owner, then it is considered an emotional support animal rather than a service animal. Emotional support animals provide a therapeutic comfort, rather than performing a specific function such as picking up items for someone in a wheelchair or guiding a blind owner.
Issue 1: What rights do employees of tenants or other occupants of office buildings have to bring service animals and emotional support animals into such buildings?
Title III of the ADA, dealing with places of public accommodation (generally speaking, places that are open to the public), provides legal protection for persons with service dogs only; emotional support animals are not covered. Administrative offices in an office building are not typically places of public accommodation. However, dentist's offices, doctor's offices and other places to which the general public is invited are places of public accommodation.
Title I of the ADA, dealing with employment, provides a different set of rules. It is irrelevant under Title I whether the employee's workspace is a place of public accommodation. The only issues are whether the employee has a disability, as defined by law, and whether use of a service animal is a reasonable accommodation for the disability. Employers must provide a reasonable accommodation unless doing so would create "undue hardship." Title I applies to private employers with at least 15 employees.
Title I of the ADA does not limit the types of animals that an employee may have. Moreover, New York City's Human Rights law is interpreted extremely broadly and covers protection for persons with a need for emotional support animals. Therefore, employers in New York City must accommodate emotional support animals whenever it is a "reasonable accommodation." If the employer determines that use of any animal is a reasonable accommodation, a building owner cannot exclude the animal from the employee's place of employment or the owner may be liable for denying a reasonable accommodation or at the very least, aiding and abetting a violation of the law. Under a recent amendment, New York's Human Rights Law applies to all employers with at least one employee.
Issue 2: What rules and restrictions can the owners of office buildings impose?
Under the ADA, there are very few restrictions that a building owner can impose on persons with service animals. A building owner generally cannot ask a person to remove his or her service animal from the premises unless the animal is out of control and the disabled person does not take effective action to control it, or the animal is not housebroken. A building owner can also exclude service animals from parts of a building if the owner has legitimate safety concerns or the animal is creating a nuisance. Service animals can be required to be kept on a leash unless it interferes with the service animal's work. If not supported by a leash, the individual must control the animal through voice or signal. The ADA does not require service animals to be certified or wear any identification.
Issue 3: What kinds of questions are office building owners permitted to ask about the animal and its owner?
Under the ADA, the inquiries an employer can make about a service animal are very limited. There are only two questions that may be asked: 1) is the dog a service animal that is required because of a disability, and 2) what work or task has the dog been trained to perform. An employer or building owner cannot ask about the person's disability, require medical documentation, require a special identification card or training documentation for the dog or ask that the dog demonstrate its ability to perform the work or task.
An employer can ask broader questions about a comfort animal. For instance, the employer can ask for proof of the employee's need for the animal, such as a doctor's note.
A building owner is bound by the same restrictions as the employer. From a practical standpoint, however, if the employer determines that the use of the service animal or comfort animal is a reasonable accommodation, the building owner will have to honor that determination. Otherwise the protected person arguably could claim that the building owner aided and abetted discrimination by preventing the protected person from receiving a reasonable accommodation. Building security personnel might ask whether the animal is a service or comfort animal, but it would be wise to let the animal in and have the building manager contact the employer for any further information.
Issue 4: Are there any limits on the types of animals that owners must permit in the building?
The protections afforded to animals under the ADA only extend to service dogs (and miniature ponies). A service animal does not have to be any particular breed, and allergies or fear of dogs are not valid reasons for denying access.
Under the NYC Human Rights Law, there is no restriction on the type of animal that may be a comfort animal. An employer may have to consider allowing an employee to use an emotional support animal, companion animal (pet) or other assistance animal if the employee needs the animal as a reasonable accommodation for a disability.
We recommend that you take the following steps:
1. Train your building staff about the rights of employees of building tenants to have service animals and emotional support animals in the building.
2. Train your building staff about the limitations on the types of questions they can ask and information they can request.
3. Review your lease forms and rules and regulations to make sure they are consistent with applicable law. For example, if you have language prohibiting animals in the building, it may be wise to add an exception for animals that are permitted under applicable law.
4. Consult with your insurer or risk manager about any building policies or insurance coverage they may recommend relating to animals in the building. (Note, however there are various legal restrictions prohibiting charging tenants' extra amounts because they have a service/emotional support animal.)
|Steer, Richard L. Partner and Chair of Employment Practices Liability Insurance Practice||Partner and Chair of Employment Practices Liability Insurance Practice||212.216.8070|
|Weisner, William W. Partner and Chair of Real Estate Practice||Partner and Chair of Real Estate Practice||212.216.8095|