New Dog in Town

On June 14, 2013, Governor Perry signed an amendment to Texas’ Service Animal law by modifying Texas’ Health and Safety Code, Section 437.023 and its Human Resources Code, Section 121.002 et seq. Major changes in the law include expanding the disabilities of individuals served by a Service Animal and imposing restrictions on questions that may be asked of individuals utilizing a Service Animal.

This new law introduces some significant risks to business owners in Texas and, although not designed as an employment law, could potentially impact the employment relationship.

The following notable changes become effective as of January 1, 2014:

1. The law prohibits denying the admittance of a Service Animal into an area of a facility that is open to customers (and not used to prepare food) if the Service Animal is accompanied by a person with a disability or the Service Animal is in training and is controlled by an approved trainer. (There is no definition of what "approved" means or who issues such an approval.)

2. The definition of public facility has been expanded to include retail businesses, commercial establishments or office buildings in which the general public may enter. Facilities which might not be considered public would be those requiring a security code to gain access. Although the law focusses on third parties, i.e., customers, entering the property, there is no carve out for employees or independent contractors of the facility.

3. One piece of positive news to the business owner is that the definition of a Service Animal is specifically re-defined as being a dog (rather than other animals) that has been specially trained or equipped to help a person with a disability. The eliminates the possibility, at least under state law, of service horses or cats.

4. The requirement in prior law that individuals with disabilities using Service Animals be trained by reputable and competent organizations involved in providing such Service Animals to the disabled, has been deleted. So long as an individual has a disability, he/she is allowed to have a Service Animal if that animal performs tasks directly related to helping the individual with his/her disability.

5. The issue of what disabilities are covered presents some new challenges for the business owner. In addition to individuals with obvious disabilities such as visual, auditory or physical impairments, the new law now extends its protections to individuals with seizure disorders, those with mental illnesses requiring prescribed medication and those with post-traumatic stress disorder.

6. What rights do the business owner have when an individual with a Service Animal appears at the facility entrance? The answer is very few. The facility representative is not allowed to ask questions relating to the qualifications or certifications of the service dog except to determine the basic type of assistance provided by the animal.

If the individual’s disability is not readily apparent for purposes of admittance, the facility representative is ONLY permitted to inquire about (1) whether the dog is required because the person has a disability and (2) what type of work the dog is trained to perform. No other questions are allowed.

It may be helpful for the business owner to be aware that under the new law service dogs that simply provide comfort or emotional support do not fall under the designation of Service Animals. However, with the stringent limitations on questions that may be asked, a facility representative turning away a service dog because of the discernment that the dog is a "comfort" animal is certainly asking for the involvement of the legal system.

7. And, what might the involvement in the legal system look like? For those who are found to have violated the law, the consequences are not to be ignored: for those found guilty, a misdemeanor criminal penalty punishable by fine of not more than $300.00 AND 30 hours of community service with an entity primarily serving persons with disabilities. In addition, the person who violates the law is deemed to have deprived the disabled individual of his/her civil liberties and is subject to a civil suit with a presumption of damages of at least $300.00.

8. Applying a balanced approach, the law does penalize individuals who use Service Animals falsely with criminal sanctions of $300.00 and 30 days of community service. There is no right for the facility owner to sue the individual however.

Although this new law is no doubt well intentioned, and appears designed to improve Service Animal’s and their owner’s access to public facilities, the vagaries of the statute and its noteworthy penalty provisions practically guarantee that Texas courts will become extraordinarily involved in its interpretation. Persons associated with these facilities who are accused of violating this new law probably will not relish having to pay for such judicial clarity.

The Methodist Hospital Wellness Services

Texas SHRM
P.O. Box 8058
Tyler, Texas 75711
www.texasshrm.org • info@texassshrm.org • 214-354-8740