We often see people with service dogs on the street, in the stores, and on trains and it appears as if the number is growing. People with disabilities use a service dog in order to fully participate in everyday life. Service animals perform tasks such as helping a vision impaired individual get around, to alerting a hearing loss person of what is out of sight, to providing physical stability to ambulate to even helping a person during a medical crises.
The Americans with Disabilities Act (ADA) applies to service animals. Under the ADA, “[i]ndividuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.” 28 C.F.R. § 35.136(g). Accordingly, entities that have a "no pets" policy generally must modify the policy to allow service animals into their facilities.
Dogs (and Miniature Horses) Can Be Service Animals.
Under the ADA, a service animal is defined as a “dog” that has been individually trained to do work or perform tasks for an individual with a disability and states that the task(s) performed by the dog must be directly related to the person's disability:
Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.
28 C.F.R. § 35.104.
With a few exceptions, Title II of the Americans with Disabilities Act requires public entities to permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go. 28 C.F.R. § 35.136(g).
As stated above, service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. 28 C.F.R. § 35.104.
The ADA does not restrict the type of dog breeds that can be service animals. A service animal may not be excluded from ADA protection based on assumptions or stereotypes about the animal's breed or how the animal might behave.
Even though not included in the definition of a service animal, the more recent ADA regulations extend protections to the use of miniature horses. Businesses must make reasonable modifications in policies, practices and procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. 28 CFR 35.136(i)(1)
In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider--
(i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
(ii) Whether the handler has sufficient control of the miniature horse;
(iii) Whether the miniature horse is housebroken; and
(iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
Emotioanl Support Animals Are Not Covered By ADA
In general, "Emotional support animals", "therapy dogs", "comfort dogs" and "companion dogs" are not considered service animals that fall under Title II's mandate. 28 C.F.R. § 35.104. Because they have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA. Nevertheless, some states do allow emotional support animals.
An exception to this arises if the "emotional support dogs" actually performs psychiatric services. The ADA makes a distinction between psychiatric service animals and emotional support animals. If, for example, the dog is trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, the dog would qualify as a service animal under 28 C.F.R. § 35.104.. In contrast, if the dog's mere presence provides comfort, that would not be considered a service animal under the ADA.
Public Accommodations May Only Ask Two Questions
The ADA does not require service animals to wear a vest, ID tag, or specific harness. The situation often arises in public accommodation where it is not obvious whether a dog is a service dog or an emotional support animal. In situations where it is not obvious if a dog is a service animal, employees of a public entity are permitted to ask if the dog is a service animal required because of a disability, and what work or task the dog has been trained to perform. 28 C.F.R. § 35.136(f).
Under the regulations, the public accommodation employee may ask only two specific questions:
(1) Is the dog a service animal required because of a disability? and
(2) What work or task has the dog been trained to perform?
28 C.F.R. § 35.136(f) Staff are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person's disability. 28 C.F.R. § 35.136(f). They also may not inquire when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability). 28 C.F.R. § 35.136(f).
Dogs In Training Are Not Covered By The ADA
People with disabilities have the right to train the dog themselves and are not required to use a professional service dog training program. The ADA does not extend to dogs that are in training. The dog must already be trained before it can be taken into public places; however, some state or local laws cover animals that are still in training.
Service Animals Must Be Under The Care Of Its Handlers
The ADA requires that service animals be under the control of the handler at all times. In most instances, the handler will be the individual with a disability or a third party who accompanies the individual with a disability. If a service animal is out of control and the handler does not take effective action to control it, staff may request that the animal be removed from the premises.
Covered Entities Must Accommodate Service Dogs
In most cases, the public facility must allow the individual and the service animal all the same rights as a person without a service dog. 28 C.F.R. § 35136(g). The ADA requires that all covered entities (state and local government agencies, businesses, and non-profit organizations that provide goods or services to the public) make "reasonable modifications" in their policies, practices, or procedures to accommodate people with disabilities. 28 C.F.R. § 36.302(c)(1). Accordingly, entities that have a "no pets" policy generally must modify the policy to allow service animals into their facilities.
Under the ADA, “[i]ndividuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.” 28 C.F.R. § 35.136(g).
The government ADA website provides additional information and guidance regarding specific locations where service animals are routinely present.
The ADA public accommodation most often arises with service animals in restaurants. Under ADA, service animals in restaurants, are allowed to sit in the dining room with their handlers and must be allowed to accompany their handlers to and through self-service food lines. Seating, food, and drink are provided for customer use only. The ADA gives a person with a disability the right to be accompanied by his or her service animal, but covered entities are not required to allow an animal to sit on a seat or be fed at the table.
Another common issue arises with service animals in hotels. A guest with a disability who uses a service animal must be provided the same opportunity to reserve any available room at the hotel as other guests without disabilities. They may not be restricted to "pet-friendly" rooms and hotels are not permitted to charge guests for cleaning the hair or dander shed by a service animal. If the service animal causes damage to the guest room, the hotel is permitted to charge the guest the same way it would any other guest of the hotel for damage.
Usually, service animals must be allowed in patient rooms and anywhere else in the hospital the public and patients are allowed to go. They cannot exclude a patient's service animal on the basis that the staff can provide the same services. An exception exists if the handler is unable to care for the animal and does not have anyone to care for the animals' needs; in that situation, the hospital must allow the patient to make other arrangements or assist with providing an alternate arrangement for the service animal.
The dog must stay on the floor, or the person must carry the dog.
In health clubs:
The ADA does not override public health rules that prohibit dogs in swimming pools. The service animals are allowed in all areas where the public is allowed to go, including the pool deck.
In religious institutions:
Religious institutions and organizations are specifically exempt from the ADA. Some states have laws that may protect service dogs in religious organization locations.
The ADA does not apply to airlines. The Air Carrier Access Act is the Federal law that protects the rights of people with disabilities in air travel and extends its protection to service animals.
Allowing Access Does Not Include Care For Service Animals
The public facility has no obligation to supervise, care for, supervise, feed, clean up after or provide veterinary care. The handler of the service animal is responsible for all care and supervision. 28 C.F.R. § 35.136(f)
Best Practices For Employers
Make your employees aware that the ADA extends to protecting the use of service animals. The cases oftentimes arise because the employee is not aware of the law and inadvertently asks too many questions or states a blanket exclusion that animals are not permitted. A little education will go a long way to assure that your company is complying with this ADA requirement.
Contact Kristin Tauras at McKenna Storer for questions about this topic or any other ADA, Employment policy or Employment law concerns or questions.
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