The Law and Service Animals

July 6, 2011 in Hearing Loss & Deafness
From Southeast Disability & Business Technical Assistance Center (Southeast DBTAC): Your Regional Resource Center for the ADA – A Project of the Burton Blatt Institute at Syracuse University

The DBTAC: Southeast ADA Center (Southeast DBTAC) publishes a variety of TIPS intended to provide accurate information on issues and concerns related to the Americans with Disabilities Act (ADA) for information specialists, advocates, business owners, government agencies, managers, and the general public. The examples used in these TIPS are based on actual questions received by the Southeast DBTAC, and are designed to strengthen the capacity of those who provide information and technical assistance to help others achieve effective compliance with the ADA. This TIPS reflects the best professional judgment of the Southeast DBTAC staff and its regional affiliate network and has not been reviewed for accuracy by federal enforcement agencies. If you have questions or suggestions about the TIPS, email the Southeast DBTAC (sedbtacproject@law.syr.edu).

Under the Americans with Disabilities Act (ADA), a qualified individual with a disability who uses a service animal must be allowed to bring the service animal to any place of employment, business, and state or local government facility or program.

What is a Service Animal?

According to the new Department of Justice (DOJ) regulations—which will take effect on March 15, 2011—a service animal is a dog that is “individually trained to work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”  The work or tasks the service animal performs must be directly related to the handler’s disability.

The service animal must be under the handler’s control and must have a harness, leash or other tether. If handler is unable to use these because of their disability or because use would interfere with the safe and effective performance of work or tasks, the animal must otherwise be under the handler’s control (i.e., voice control, signals, or other effective means.)

Miniature horses trained to do tasks to aid the person with disabilities are exceptions to the general rule that service animals must be dogs.

The new rules do not affect other laws, like the Fair Housing Act or Air Carrier Access Act (ACAA).

 

What about Therapy Animals?

Because service animals must “do work or perform tasks,” emotional support and comfort animals are not included in the definition of “service animal.”  Therefore, animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits or to promote emotional well-being are not service animals as defined under the new DOJ regulations. Federal law does not require places of public accommodation to modify “no pets” policies for therapy animals.

 

Is Documentation Required?

An individual does not need to provide documentation regarding his/her need for a service animal. The ADA generally prohibits covered entities from directly asking a person if s/he has a disability. If, however, the need for the service animal is not apparent, the entity may ask what tasks the animal performs and whether the animal is required because of a disability.

 

Can Fees Be Charged for Service Animals?

Covered entities may not charge deposits or surcharges for allowing a service animal to accompany an individual with a disability, even if deposits are normally required for pets.  However, individuals with disabilities may be charged for damage caused by their service animal, so long as the entity regularly charges individuals without disabilities for the same damages.

 

Are There Circumstances When a Service Animal Can Be Excluded?

A service animal may be excluded when the animal’s behavior poses a direct threat to the health or safety of others. For example, a service animal that displays vicious behavior towards other guests or customers may be excluded. However, assumptions may not be made about how a particular animal is likely to behave based on past experience with other animals. Each situation must be considered individually.

For example, a patron with a disability was hospitalized. She demanded that her service animal be with her 24 hours a day. The hospital admitted her and her service animal, but the dog had a putrid odor, growled at the nurses and other patients, and increased the patron’s and other patients’ risk for infection. The court held that the service animal posed a direct threat to the health and safety of others and that it was proper to remove the service animal from the facility. See Roe v. Providence Health Systems, 655 F.Supp.2d 1164 (D.Or. 2009).

In some instances, the presence of a service animal may conflict with other interests.  A plaintiff sued a ferry company that refused to allow her service animal into a specific area of the ferry.  The ferry company based its one-time refusal on the requests of a frequent customer with dander allergies for an animal-free area.  The court found that the ferry did not violate the ADA because it based its decision on consideration for the health and safety of others.  See Lockett v. Catalina Channel Exp., Inc., 496 F.3d 1061 (9th Cir. 2007).

When the accommodation of a service animal would result in a fundamental alteration to the nature of the business, service or activity it may be excluded. For example, a dog barking during a theatrical performance may be excluded. If a service animal is generally out of control, the handler does not take effective action to control it, or the animal is not housebroken, it may be excluded. However, the individual with the disability must be allowed to return without the animal.

 

What about Service Animals in Housing?

The Fair Housing Act Amendments prohibit discrimination because of disability in the sale, rental or advertising of dwellings. The law requires public and private housing providers to modify policies and practices that deprive individuals with disabilities of their rights to enjoy and use their dwellings. The Act requires covered housing providers to make reasonable accommodations to policies that prohibit pets or require deposits for animals.  Exemptions include buildings with four or fewer units where the landlord lives in one of the units, and private owners who do not own more than three single family houses.

 

What about Service Animals in Air Travel?

According to the Air Carrier Access Act Part 382 regulations, airlines must permit service animals to accompany a qualified person with disabilities on a flight.  The service animal may accompany the individual in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain clear in order to facilitate an emergency evacuation or to comply with Federal Aviation Administration regulations. Airline personnel may ask whether an animal is a service animal, but may not require documentation as a prerequisite to boarding.  Airlines may rely on credible verbal assurances of the individual using the animal. Identification may include cards or other documentation, presence of a harness or markings on a harness, tags, or the credible verbal assurance of the passenger using the animal.

The U.S. Department of Transportation Guidance Concerning Service Animals in Air Transportation [PDF version] also recognizes emotional support animals as service animals.

For more information about the Souteast DBTAC click here.