The subject of service animals has been in the news quite a bit recently, mostly because of the wave of controversy surrounding “fraudulent” service animals creating problems on airplanes. However, legitimate service animals provide crucial assistance to many disabled individuals, allowing them the freedom to live their lives safely and independently.
There are many federal, state and local laws which apply to service animals. Unfortunately, many of these laws are convoluted, conflicting and confusing and are enforced by different government agencies.
The most pertinent of these laws include the Americans with Disabilities Act (ADA), the Fair Housing Act (FHAct), Section 504 of the Rehabilitation Act and the Air Carrier Access Act (ACAA).
Rules Under the ADA
The ADA prohibits disability based discrimination in employment (Title I), state and local government services (Title II), and public accommodations and commercial facilities (Title III). This includes discrimination based on a disabled person requiring the use of a service animal.
Title I of the ADA which applies to employers does not define the term service animal. States often have their own employment laws that may be applicable. Otherwise, employers should treat a request for a service animal accommodation the same way they would treat any other disability accommodation request. Employers should look to the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on reasonable accommodations under the ADA to ensure compliance.
Titles II and III of the ADA define service animal as a dog or miniature horse that is individually trained to do work or perform tasks for people with disabilities. Other species of animals, emotional support, comfort and therapy dogs are not considered service animals under the ADA.
The general rule under the ADA is that state and local governments, businesses and non-profit organizations serving the public must allow service animals accompanying a person with a disability equal access to areas that are open to the rest of the public, unless there is a legitimate threat or safety concern.
The work or tasks performed by a service animal must be directly related to the individual’s disability. Such types of tasks may include guiding a blind person, pulling a person in a wheelchair, retrieving dropped items for a person unable to do so, alerting a deaf person to a sound, or reminding a person to take medication.
Under Title II and III of the ADA, a disabled person with a service animal is not required to provide medical documentation, a special identification card or training documentation for the service animal, or have the animal demonstrate its ability to perform service work or tasks.
When it is not obvious what service an animal provides, only limited inquiries are allowed. Staff may only ask if the animal is a service animal required because of a disability, and inquire about what work or task the animal has been trained to perform.
The service animal can only be required to leave an establishment if it is not housebroken, is out of control and the handler does not take effective action to control it, or there is some other legitimate reason that the animal be removed. In that case, the disabled person must be offered the opportunity to obtain goods or services without the animal’s presence.
Rules Under the FHAct & Section 504
The FHAct prohibits various types of housing discrimination, including discrimination based on disability. The FHAct covers:
- One-family homes
- Homeless shelters
- Dormitory rooms
- Mobile home parks
- Trailer courts
- Nursing homes
- Assisted-living homes
- Group homes for the disabled
- Retirement communities
Section 504 of the Rehabilitation Act prohibits discrimination against people with disabilities in programs that receive federal financial assistance, which would include programs that that provide education, health care, housing, social services, or recreation.
The US Department of Justice (DOJ) and the US Department of Housing and Urban Development (HUD) are jointly responsible for enforcing the FHAct as well as Section 504 of the Rehabilitation Act.
HUD regulations use the term assistance animal, which is defined as an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or that provides emotional support that alleviates one or more identified effects of a person’s disability.
Housing providers must use the general principles applicable to all reasonable accommodation requests for disabled individuals when evaluating an accommodation request to possess an assistance animal in a dwelling.
After receiving such a request, the housing provider needs to consider:
- Does the person seeking the accommodation to have an assistance animal have a disability ?
- If so, does the person making the request have a disability-related need for an assistance animal?
Housing providers may ask individuals who have disabilities that are not known or apparent to submit documentation of a disability and their disability related need for an assistance animal.
If the disability is known and apparent, but the disability related need for the assistance animal is not, the housing provider may ask the individual to provide documentation of the disability related need for an assistance animal.
Rules Under the ACAA
The ACAA (49 U.S.C. 41705) prohibits discrimination on the basis of disability in air travel, which includes all flights of U.S. airlines and flights to or from the United States by foreign airlines. The Act is enforced by the US Department of Transportation (DOT) which issued a rule (Title 14 CFR Part 382) defining the rights of passengers and the obligations of airlines under this law.
The ACAA defines a service animal as any animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal that assists qualified persons with disabilities by providing emotional support.
Airlines are permitted to exclude animals that:
- Are too large or heavy
- Pose a direct threat to safety of passengers
- Cause a significant disruption
- Are prohibited from entering a foreign country
However, airlines are never required to accept snakes, reptiles, ferrets, rodents or spiders.
Airlines can make a determination about whether an animal is a service animal or pet using the following criteria.
- Credible verbal assurances of a qualified individual with a disability using the animal
- Physical clues such as the presence of a harness or tags
- Specific documentation for emotional or psychiatric support animals
- Observing the behavior of the animal
Passengers needing to travel with an emotional support or psychiatric service animal may be required to provide specific documentation and/or 48 hours advance notice.
The documentation must be from a licensed healthcare professional who must include the date and type of his/her professional license, as well as the jurisdiction or state in which the license was issued. The documentation must also include the following statements.
- The passenger has a mental or emotional disability that is recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM);
- The passenger needs an emotional or psychiatric support animal as an accommodation for air travel and/or for activity at destination;
- The individual providing the assessment is a licensed mental health professional and the passenger is under his/her professional care.
DOT has a disability hotline at 1-800-778-4838 (voice) or 1-800-455-9880 (TTY) that gives general information about disabled air traveler rights and assistance with time-sensitive disability related issues that need to be addressed in “real time.”
Disabled air travelers who believe their rights under the ACAA were violated and are unable to get adequate assistance through the hotline can file a formal complaint with DOT. The ACAA does not permit private lawsuits.
DOT is expected to issue new rules regarding service animals on airplanes in the near future, so check their website to stay abreast of any changes.
To gain a greater understanding of the enormous impact a service animal can have in the life of a disabled person, watch this video from Seeing Eye.
The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.