Service and Companion Animals

Submitted by Angela Nevin, CCDC Communication & Training Manager, January 22, 2018

The Attorney General of the United States has struck down guidance by the United States Department of Justice that we have relied upon in teaching our advocates and members (as well as the general public) for years. For example,”COMMONLY ASKED QUESTIONS ABOUT SERVICE ANIMALS IN PLACES OF BUSINESS” has been withdrawn as official guidance by the Department of Justice. This does not mean the law has changed, only that the documents used to clarify and explain the law have been rescinded.

See https://www.ada.gov/ta_withdrawn.html for more information regarding other technical assistance documents the DOJ has used for many years to provide guidance regarding laws that individuals with disabilities use routinely to advise members, advocates, businesses, public entities and the general public about the DOJ’s  position regarding its rules and regulations. The Attorney General has also issued an order prohibiting the  DOJ from issuing any further guidance regarding the ADA or any other provisions without going through the rules and comment process required for regulations.

https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-rescinds-25-guidance-documents.

Therefore, we are publishing this blog post with the hope of clarifying questions individuals have regarding service animals, companion animals, the ADA, the Fair Housing Act, and the Air Carrier Act.

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Service Animal Overview

A service animal is a dog that has been trained to do work or perform tasks for a person with a disability. Examples of such work or tasks include:

Guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties.

Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability.

Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

This definition does not affect or limit the broader definition of “assistance animal” under the Fair Housing Act or the broader definition of “service animal” under the Air Carrier Access Act.

Some State and local laws also define service animal more broadly than the ADA does. Information about such codes can be obtained from the State attorney general’s office.

 

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Where Service Animals Are Allowed

Under the ADA, State and local governments, businesses, and nonprofit organizations that serve the public generally must allow service animals to accompany people with disabilities in all areas of the facility where the public is typically allowed to go. For example, in a hospital, it would be inappropriate to exclude a service animal from areas such as patient rooms, clinics, cafeterias, or examination rooms. However, it may be appropriate to exclude a service animal from operating rooms or burn units where the animal’s presence may compromise a sterile environment.

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Service Animals Must Be Under Control

Under the ADA, service animals must be harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work or the individual’s disability prevents using these methods. In that case, the individual must maintain control of the animal through voice, signal, or other adequate controls.

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Inquiries, Exclusions, Charges, and Other Specific Rules Related to Service Animals

• When it is not obvious what service an animal provides, only limited queries are allowed. Staff may ask two 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. Staff cannot ask about the person’s disability, require medical documentation, require an identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.

• Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. This might occur if someone is allergic to dog dander is in the same room as an individual with a service animal, for example, in a school classroom or at a homeless shelter. Attempts to accommodate both individuals should occur, but remember, this is not a valid reason for removing the service animal. Instead, the situation might be resolved by assigning the individuals to different locations within the room or different rooms in the facility.

• A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken. When there is a legitimate reason to ask that a service animal is removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.

• Establishments that sell or prepare food must allow service animals in public areas even if a state or local health codes prohibit pets on the premises.

• People with disabilities who use service animals cannot be isolated from other patrons, treated less favorably than other patrons, or charged fees that are not charged to other patrons without animals. Also, if a business requires a deposit or price to be paid by patrons with pets, it must waive the charge for service animals.

• If a business such as a hotel usually charges guests for damage that they cause, a customer with a disability may also be charged for damage caused by himself or his service animal.

• Staff is not required to provide care or food for a service animal.

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Miniature Horses

In addition to the provisions about service dogs, the Department’s revised ADA regulations have a new, separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. (Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and typically weigh between 70 and 100 pounds.) Entities covered by the ADA must modify their policies to permit miniature horses where reasonable. The regulations set out four assessment factors to assist entities in determining whether miniature horses can be accommodated in their facility. The assessment factors are

1. Whether the miniature horse is housebroken
2. Whether the miniature horse is under the owner’s control
3. Whether the facility can accommodate the miniature horse’s type, size, and weight
4. Whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility

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Flying With Service Animals

Must carriers permit passengers with a disability to travel with service animals? The answer is yes, and the rules are defined in the Code of Federal Regulations, listed below.
(a) As a carrier, you must permit a service animal to accompany a passenger with a disability.

(1) You must not deny transportation to a service animal on the basis that its carriage may offend or annoy carrier personnel or persons traveling on the aircraft.

(2) On a flight segment scheduled to take 8 hours or more, you may, as a condition of permitting a service animal to travel in the cabin, require the passenger using the service animal to provide documentation that the animal will not need to relieve itself on the flight or that the animal can relieve itself in a way that does not create a health or sanitation issue on the flight.

(b) You must permit the service animal to accompany the passenger with a disability at any seat in which the passenger sits unless the animal obstructs an aisle or other areas that must remain unobstructed to facilitate an emergency evacuation.

(c) If a service animal cannot be accommodated at the seat location of the passenger with a disability who is using the animal, you must offer the passenger the opportunity to move with the animal to another seat location, if present on the aircraft, where the animal can be accommodated.

(d) As evidence that an animal is a service animal, you must accept identification cards, other written documentation, the presence of harnesses, tags, or the credible verbal assurances of a qualified individual with a disability using the animal.

(e) If a passenger seeks to travel with an animal that is used as an emotional support or psychiatric service animal, you are not required to accept the animal for transportation in the cabin unless the passenger provides you current documentation (i.e., no older than one year from the date of the passenger’s scheduled initial flight) on the letterhead of a licensed mental health professional (e.g., psychiatrist, psychologist, licensed clinical social worker, including a medical doctor individually treating the passenger’s mental or emotional disability) stating the following:

(1) The passenger has a mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders–Fourth Edition (DSM IV)

(2) The passenger needs the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger’s destination

(3) The individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care

(4) The date and type of the mental health professional’s license and the state or other jurisdiction in which it was issued

(f) You are never required to accommodate certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) as service animals in the cabin. With respect to all other animals, including unusual or exotic animals that are presented as service animals (e.g., miniature horses, pigs, monkeys), as a carrier you must determine whether any factors preclude their traveling in the cabin as service animals (e.g., whether the animal is too large or heavy to be accommodated in the cabin, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight’s destination). If no such factors preclude the animal from traveling in the cabin, you must permit it to do so. However, as a foreign carrier, you are not required to carry service animals other than dogs.

(h) You must promptly take all steps necessary to comply with foreign regulations (e.g., animal health regulations) needed to permit the legal transportation of a passenger’s service animal from the U.S. into a foreign airport.

(i) Guidance concerning the carriage of service animals generally is found in the preamble of this rule. Advice on the steps necessary to legally transport service animals on flights from the U.S. into the United Kingdom is found in 72 FR 8268–8277, (February 26, 2007).

The Contradictory Nature of Section (d) above:

Under no other section of any disability rights statutes, are identification cards, other written documentation, the presence of harnesses, tags required or needed, so it seems unlikely the owner of the animal would have such documentation when boarding a plane, train, public transportation, entering a business. Nevertheless, when flying, it does not hurt, as always, to have a letter from a treating physician.

Under any circumstances, whether documentation is needed or not, the CCDC Legal Program recommends a letter (“prescription”) from the treating physician explaining

1. The animal is a service animal, emotional support animal, etc.
2. The reason why the animal is needed under the particular circumstances
3. What would happen if the animal was not present under the circumstances

It is best to carry a pocket-size or other small version of the airline statute with you so you can prepare the airline attendant for the exact requirement, if necessary.

Under the airline statute, it is required that there be a Customer Services Officer (CSO) available to address disability-related complaints. Make sure to have that information before flying or that the individual with whom you are discussing the issue is aware to contact that person if there is a problem.

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Companion Animals

Just as we have long recognized the benefits of assistive animals for people physical disabilities including guide dogs for those with visual impairments, hearing dogs that are trained to perform tasks such as alerting their owners to oncoming traffic or someone at the door, people with psychiatric disabilities can benefit significantly from assistive animals, too. Emotional support animals have been proven extremely effective at ameliorating the symptoms of these disabilities, such as depression and posttraumatic stress the, by providing therapeutic nurture and support.

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Differences for Animals in Housing

Discrimination under the FHA includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling.” U.S.C. § 3604(f)(3)(B). A request for a reasonable modification for an emotional support animal may be just as reasonable as the request to use a wheelchair, so long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation. The Department of Housing and Urban Development (HUD) and several courts have explicitly stated that an exception to a “no pets” policy would qualify as a reasonable accommodation.

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Types of Animals

There are no type restrictions for companion animals, but the animal must be “necessary as a reasonable accommodation to assist, support, or provide service to persons with disabilities” to qualify under the exclusion from pet ownership policies. It is worth emphasizing that companion or emotional support animals are not service animals. Many people try to treat their emotional support animal (which is “used” in the home) as a service animal allowed to travel to public accommodations and facilities owned and operated by government entities. Service animals and companion animals are not the same things, and attempting to treat them as such is a violation of the law. The definition of a service animal includes the requirement that the animal receives specialized training to provide a service that is necessary for the individual with a disability to be in a public place. No such requirement appears in the Fair Housing Act, and emotional support animals are designed to provide care and comfort, not specific services.

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Additional information provided by CCDC Attorney, Andrew Montoya

Memo re DOJ Withdrawal of Guidance

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Additional information provided by CCDC Attorney, Kevin Williams

P3.SA_.HUD Matrix.6-28-6