Q: What are the laws that apply to my business?
A: Under the Americans with Disabilities Act (ADA) and Massachusetts General Law c. 272, § 98A, businesses that serve the public, such as restaurants, hotels, retail stores, taxicabs, theaters, concert halls, and sports facilities, are prohibited from discriminating against individuals with disabilities. Among other things, these laws require businesses to allow people with disabilities to bring their service animals onto business premises in whatever areas customers are generally allowed. Discrimination by a business against persons with disabilities is also a violation of the Massachusetts Consumer Protection Act, G.L. c. 93A.
Service animals are also protected under state and federal fair housing and employment discrimination laws as well as rules that apply to entities that receive federal funds or federal contracts.
Q: What is a service animal?
A: The ADA defines a service animal as a dog that is individually trained to do work or perform tasks for a person with a disability. If the animal meets this definition, the animal is considered a service animal. The animal does not have to be licensed or certified as a service animal. Reasonable accommodation is required for miniature horses as well; however, a business is allowed to consider the horse’s size, and how well it is controlled. State law protects dogs being used, or in training to be used, for people who are blind, deaf or physically handicapped.
Service animals perform some of the functions and tasks that the individual with a disability cannot perform for him or her. "Seeing eye dogs" for example, that assist individuals who are blind are a common type of service animal. But there are service animals that assist persons with other kinds of disabilities in their day-to-day activities. Some examples include:
- Alerting persons with hearing impairments to sound
- Pulling wheelchairs or carrying and picking up things for persons with mobility impairments
- Assisting persons with mobility impairments with balance
- Alerting a person with a epilepsy, diabetes or a psychiatric disability to health changes that need immediate attention
Other laws, including fair housing and employment discrimination laws, allow animals other than dogs and miniature horses and animals that do not have training, such as “emotional support animals” if it is a reasonable accommodation for a disability. If your business has a grant or contract funded by the federal government, you should check with your funding source for applicable rules.
It is important to remember that an individual may have a disability even if that disability is not open and obvious. For example, some servicemembers and veterans are prescribed service animals to treat Traumatic Brain Injury (TBI) and Post Traumatic Stress Disorder (PTSD).
Q: How can I tell if an animal is really a service animal and not just a pet?
A: Some, but not all, service animals wear special collars and harnesses. If you are not certain that an animal is a service animal, you are allowed to ask (1) if it is a service animal required because of a disability, or (2) what tasks the animal performs. You cannot ask for documentation or certification that it is a service animal. Currently, there is no state or national certification available for service animals so businesses are not permitted to inquire if the animal is licensed or certified or whether the animal has identification papers
Q: What must I do when an individual with a service animal comes to my business?
A: The service animal must be permitted to accompany the individual with a disability to all areas of the facility where customers are normally allowed to go. An individual with a service animal may not be segregated from other customers.
To differentiate between pets and service animals, businesses can ask the person with a disability if the animal is a service animal required because of a disability. They can also ask what tasks the animal has been trained to perform. Once an individual answers these questions the business may not question them further or separate the animal from the individual except as noted above. Businesses may not inquire about the individual’s disability
Q: I always have had a clearly posted "no pets" policy at my establishment. Do I still have to allow service animals in?
A: Yes. A service animal is not a pet. The ADA requires you to modify your "no pets" policy to allow the use of a service animal by a person with a disability. This does not mean you must abandon your "no pets" policy altogether, but simply that you must make an exception to your general rule for service animals.
Q: My county health department has told me that only a seeing eye or guide dog has to be admitted but not dogs that help people with other disabilities. If I follow those regulations, am I violating the ADA?
A: Yes. Service dogs are not just seeing eye or guide dogs for people who are blind. They can include dogs for people with epilepsy or mobility impairments or other disabilities. Also, the ADA provides greater protection for individuals with disabilities and takes priority over local or state laws or regulations.
Q: Can I charge maintenance or cleaning fee for customers who bring service animals into my business?
A: No. Businesses cannot impose a deposit or surcharge on an individual with a disability as a condition for allowing a service animal to accompany the individual with a disability, even if deposits are routinely required for pets. However, businesses and other places of public accommodation may charge any customer who causes damage to property including any damage caused by a service animal. For example, a hotel may charge a guest with a disability for the cost of repairing or cleaning furniture by a service animal if it is the hotel's policy to charge when non-disabled guests cause such damage. However, a hotel cannot impose a general “pet fee” for service animals.
Q: I operate a private taxicab and I don't want animals in my taxi; they smell, shed hair and sometimes have "accidents." Am I violating the ADA if I refuse to pick up someone with a service animal?
A: Yes. Taxicab companies may not refuse to provide services to individuals with disabilities. Private taxicab companies are also prohibited from charging higher fares or fees for transporting individuals with disabilities and their service animals than they charge to other persons for the same or equivalent service.
Q: Am I responsible for the animal while the person with a disability is in my business?
A: No. The care and supervision of a service animal is solely the responsibility of his or her owner. You are not required to provide care, food or a special location for the animal. You may designate an area for owners to take their animal to relieve itself.
Q: What if a service animal barks or growls at other people or otherwise acts out of control?
A: You may exclude any animal, including a service animal, from your facility when that animal's behavior poses a direct threat to the health or safety of others. For example, any service animal that displays vicious behavior towards other guests or customers may be excluded. You may not make assumptions, however, about how a particular animal is likely to behave based on your past experience with other animals. Each situation must be considered individually.
Although a public accommodation may exclude any service animal that is out of control, it should give the individual with a disability using the service animal the option of continuing to enjoy the public accommodation without the service animal on the premises.
Q: Can I exclude an animal that doesn't really seem dangerous, but is disruptive to my business?
A: There may be a few circumstances when a public accommodation is not required to accommodate a service animal—for example, when doing so would result in a fundamental alteration to the nature of the business. Generally, this is not likely to occur in restaurants, hotels, retail stores, theaters, concert halls, and sports facilities. However a dog that barks in a movie theater can be excluded because the barking fundamentally alters the nature of other customers’ movie-going experience.
Q: What are the protections for service animals in Massachusetts? Can I exclude an animal that doesn't really seem dangerous, but is disruptive to my business?
A: Service animals are protected under the Americans with Disabilities Act and Massachusetts General Law c. 272, § 98A, among other laws. These laws require businesses to allow individuals accompanied by service animals into places of public accommodation like restaurants, hotels, and stores, regardless of sanitary or health codes.
The individual and the service animal must be permitted in all areas of the facility normally open to members of the public. Businesses should not seek to separate individuals with disabilities from their service animal. However, businesses can exclude service animals if the animal misbehaves and the owner is unable to bring the animal under control. In those rare cases, the person with disability must then be admitted without the service animal.
Q: I heard that business no longer has to accept animals other than dogs and miniature horses. Am I required to allow tenants in my apartment building to have animals other than dogs and miniature horses?
A: There are broader protections for service animals under state and federal fair housing laws. Service animals can include many types of animals beyond dogs, including for example, cats, birds and rabbits. Tenants with disabilities who live or seek to live in an apartment, multi-family house, condo, or townhouse with three or more units for rent or sale, may be allowed to live there with their service animal if they can show with sufficient documentation that the animal mitigates the disability. Residents cannot be charged a pet fee for their service animal.
For more information about service animals or accommodating individuals with disabilities, call the Civil Rights Division at (617) 963-2939. You can also review the service animal advisory published by the United States Department of Justice.