Mar 17, 2023

To embed, copy and paste the code into your website or blog: <iframe frameborder="1" height="620" scrolling="auto" src="//www.jdsupra.com/post/contentViewerEmbed.aspx?fid=2724af84-367a-4965-889b-4feb52f3bf39" style="border: 2px solid #ccc; overflow-x:hidden !important; overflow:hidden;" width="100%"></iframe> In the last few years, employers, education institutions, and places of public accommodation (e.g., airports, grocery stores, and hotels) have seen an increase in individuals who want to bring their Assistance Animal, Service Animal, or Emotional Support Animal (ESA), and pets with them to work, to school, and to other places they may go on their life journey to help address one or more health concerns. While most places have policies and procedures regarding animals, there has not only been an increase in frequency of these requests, but we are also seeing more complexity in the nature of the requests themselves. Indeed, in the last few years, there have been requests involving some particularly exotic animals—including a beehive (yes! ), a baby kangaroo, and a large “emotional support peacock”—as emotional support animals. Obviously, the presence of certain animals in some places (especially, a classroom, a boardroom, or an airplane) can be quite disruptive. Therefore, it is important for employers and other businesses dealing with these issues to better understand the difference between Assistance Animals, Service Animals, and ESAs, as well as the legal obligations attached to each. This is the first blog post in our new series on Assistance Animals, Service Animals, and Emotional Support Animals. Stay tuned for blog posts addressing unique questions and issues for education institutions, employers, and places of public accommodation in that order. What is the Difference Between Assistance Animals, Service Animals, and Emotional Support Animals? Service Animals Under the Americans with Disabilities Act (ADA), “Service Animals” means dogs that are individually trained to do work or perform tasks for people with disabilities. The ADA does not restrict the type of dog breeds that can be Service Animals. “Work” includes without limitation: guiding a person who is blind, alerting a person who is deaf, and alerting and protecting a person who is having a seizure. Tasks include without limitation: pulling a wheelchair, retrieving dropped items, reminding a person to take medication, or pressing an elevator button. While Service Animals are subject to local dog licensing and registration requirements, the ADA does not allow mandatory registration of these animals as Service Animals. It is also important to note that several states have their own laws regarding Service Animals. Some of these laws define “Service Animal” more broadly than the ADA. Note that the ADA does not require Service Animals to wear a vest, ID tag, or specific harness, although some owners and handlers of Service Animals may choose to use these items. Because Service Animals are not required to wear vests, it should not be assumed that a dog that is wearing a vest is a Service Animal. The dog still needs to be trained to perform a task for a person with a disability to be a Service Animal under the ADA. The ADA also does not require specific documentation, such as proof that the Service Animal has been certified, trained, or licensed as a Service Animal, as a condition for entry into a facility or workplace. As an example of how these definitions have expanded recently, the U.S. Department of Justice’s ADA regulations now recognize that miniature horses [1] that have been individually trained to do work or perform tasks for people with disabilities may also need to be accommodated under specific conditions, and therefore, covered entities may be required to permit them where reasonable. Covered entities should use the following four assessment factors to determine whether miniature horses can reasonably be accommodated in their facility: whether the miniature horse is housebroken; whether the miniature horse is under the owner’s control; whether the facility can accommodate the miniature horse’s type, size, and weight; and whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility. To be clear, miniature horses are not included in the definition of Service Animals, which is limited to dogs. Instead, the new ADA regulations contain a specific provision which covers miniature horses. Emotional Support Animals Unlike Service Animals, ESAs (also referred to as “comfort” or “companion animals” and “therapy dogs”) are not individually trained to do work or perform tasks. Instead, ESAs do work, perform tasks, assist, or provide emotional support for a person with a disability, which is a physical or mental impairment that substantially limits at least one major life activity or bodily function. Although Service Animals are regulated under the ADA, ESAs are not. An employee, or student in the case of educational institutions, can claim any animal as an ESA (except animals that are unlawful to possess under federal or state law). The rule is slightly different under the Fair Housing Act (FHA), which covers most housing and protects people from discrimination when they are renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housing-related activities. To qualify under the limited protection afforded to ESAs under the FHA, an ESA must be accompanied by a letter from a licensed health care professional (sometimes referred to as an “ESA letter”) confirming the person’s disability and stating the need for an ESA. Some websites sell certificates, registrations, and licensing documents for ESAs to anyone who answers certain questions or participates in a short interview and pays a fee. Under the Fair Housing Act, a housing provider may request reliable documentation when an individual requesting a reasonable accommodation has a disability and disability-related need for an accommodation that are not obvious or otherwise known. According to the U.S. Department of Housing and Urban Development, such documentation from the Internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an ESA. It is important to note that a doctor’s letter does not turn an animal into a Service Animal. Notably, guidance from the U.S. Department of Housing and Urban Development (HUD) provides that where an ESA is a unique animal that is not commonly kept in households (e.g., a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure), the requestor has a “substantial burden of demonstrating a disability-related therapeutic need for the specific animal or specific type of animal.” While some websites sell certificates, registrations, and licensing documents for ESAs to anyone who answers certain questions or participates in a short interview and pays a fee, this should not be considered a free pass. Under the Fair Housing Act, a housing provider may request reliable documentation when an individual requesting a reasonable accommodation has a disability and disability-related need for an accommodation that are not obvious or otherwise known. Critically, according to the U.S. Department of Housing and Urban Development, such documentation from the Internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an ESA. Assistance Animals Under the FHA there are two types of “assistance animals” that may need to be allowed as an accommodation in living/housing situations: (1) service animals, and (2) other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. Assistance animals are not pets. An animal that does not qualify as a Service Animal or other type of assistance animal is a pet for purposes of the FHA and may be treated as a pet for purposes of the lease and the housing provider’s rules and policies. A housing provider, which may include a public or private university, may exclude or charge a fee or deposit for pets in its discretion and subject to local law but not for Service Animals or other assistance animals. A reasonable accommodation request for an assistance animal may include, for example: (1) a request to live with an assistance animal at a property where a housing provider has a no-pets policy or (2) a request to waive a pet deposit, fee, or other rule as to an assistance animal. What accommodations must organizations provide for individuals with Assistance Animals, Service Animals, and ESAs? Organizations must ensure their policies, practices, and procedures allow individuals with disabilities to use Service Animals. Generally, organizations must allow Service Animals to accompany people with disabilities in all areas of the facility where the public is allowed to go, even in places that do not allow pets. But there are some exceptions to this general rule, and a person with a disability can be asked to remove their Service Animal from the premises under certain circumstances: First, a Service Animal may be lawfully excluded or removed if the dog is “out of control” and the handler does not take effective action to control it, or if the dog is not housebroken. Under control also means that a Service Animal should not be allowed to bark repeatedly in a conference room, lecture hall, theater, library, or other quiet place. But if a dog barks just once, or barks because someone has provoked it, this would not mean that the dog is out of control. Service Animals must also be harnessed, leashed, or tethered while in public places, unless these devices interfere with the Service Animal’s work or the person’s disability prevents use of these devices. If these devices cannot be used, the person must use voice, signal, or other effective means to maintain control of the dog. For example, a person who uses a wheelchair may use a long, retractable leash to allow their dog to pick up or retrieve items. The person may not allow the dog to wander away from them and must maintain control of the dog, even if it is retrieving an item at a distance from them. Second, a Service Animal may be lawfully excluded if the dog poses a direct threat to the health or safety of others by demonstrating dangerous behavior, having a history of such behavior, or not being under the control of the handler. If a Service Animal is excluded for such reasons, the organization must still offer their goods or services to the person without the dog present. Institutions must remember that a Service Animal may not be excluded based on assumptions or stereotypes about the dog’s breed or how the dog might behave. Third, a Service Animal may be lawfully excluded if allowing the Service Animal on the premises would require the organization to “fundamentally alter” the nature of the goods, services, programs, or activities of the organization. The ADA also does not require the organization to overrule legitimate safety requirements. In most settings, the presence of a Service Animal will not fundamentally alter the situation. But there are some exceptions where the mere presence of a dog could change the nature of the service or program. For example, an education institution could exclude a Service Animal from a specific area of a dormitory reserved specifically for students with allergies to dog dander. The Service Animal should not be excluded from other areas of the dormitory. For an additional example, at a zoo, service animals can be restricted from areas where the animals on display are the natural prey or natural predators of dogs, where the presence of a dog would be disruptive, causing the displayed animals to behave aggressively or become agitated. They cannot be restricted from other areas of the zoo. How should requests for use of a Service Animal be handled? Requests for the use of a Service Animal should be handled in accordance with the organization’s ADA reasonable accommodation policy. But organizations should be careful when conducting follow-up questions after a request. Designated employees can ask only 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? Organizations should not request any documentation that the dog is registered, licensed, or certified as a Service Animal or require that the dog demonstrate its task, or inquire about the nature of the person’s disability. As noted above, this is first blog post in our new series on Assistance Animals, Service Animals, and Emotional Support Animals. Stay tuned in the coming weeks for blog posts addressing unique questions and issues for education institutions, employers, and places of public accommodation in that order. [1] As defined in the ADA regulations, “miniature horses” are those that generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds.