Service Animals:
The Legal and Practical Issues
March 4 2012
Jerry Carbone & Chriss Buckley
Progressive Center
609 581 4500
Jerry.carbone@pcil.org
Presented by:
© Disability and Business Technical Assistance Center—Northeast
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Program Agenda
• Module 1: Why You Need to Know About This
• Module 2: Types of Service Animals
• Module 3: Legal and Practical Considerations
when Providing Access to and Interacting with
Service Animals and their Owners
• Module 4: Closing/Final Questions/Resource List
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Module 1
Why You Need to Know
About This
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•
•
•
1 in 5 Americans has a disability it is
the largest Minority population in U.S.
25% of customers have a disability or
a close friend/family member with a
disability
This population is growing due to
aging, war, and better identification &
treatments
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Hard to know how many
people use Service
Animals but….
Different studies and
registries available which
indicate that there could
be anywhere between
15,000-20,000 service
animals in the U.S.
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We’ll talk more later about
different types of Service
Animals but first…
Which laws apply???
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• The Rehabilitation Act of 1973 covers federal
entities and recipients of federal $ and contracts
• Americans with Disabilities Act (ADA) & ADA
Amendments Act
• Fair Housing Amendments Act covers housing
• The Air Carrier Access Act of 1986 allows
Service Animals to accompany passengers on
airplanes
• Individuals with Disabilities Education Act (IDEA)
• Most states have civil rights laws
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What the ADA Says…
• Service animal is 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.”
• Definition can be found in § 35.104 in Title II and in §
36.104 in Title III. This definition
– limits the species of service animals to dogs;
– makes clear that comfort or emotional support animals are
not covered; and
– also makes clear that individuals with physical, sensory,
cognitive or psychiatric disabilities can use service
animals.
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• If they meet this definition, they are
considered service animals under the ADA
regardless of whether they have been
licensed or certified by a state or local
government.
• Service animals are not pets. They perform
some of the functions and tasks that the
individual with a disability cannot perform for
him or herself.
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Under the ADA…
• Title I covers places of employment with 15 or more
employees
• Title II covers services and activities of state and
local government/public entities
• Title III covers places of public accommodation that
are private and own, lease, lease to, or operate a
place of public accommodation; commercial
facilities; and examinations and courses related to
applications, licensing, certification, or credentialing
and private entities primarily engaged in transporting
people.
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NY State Law
• Access for Service Dogs (s. 296.14 NYSHRL):
Persons using guide dogs, hearing dogs, or
service dogs in any activity
• Civil Rights Law provides coverage for people
with service animals in issues relating to public
access; work leave to train a service animal;
harassment and/or offenses against service
animals and/or handlers by other people or
dogs; dog license fee waivers; and social
services/supplemental income laws.
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NJ State Law
• Title 10: Civil Rights section relates to
“guide dogs”, “guide or service dog
trainer”, and “service dog”
• Addresses issues related to public access;
housing; employment; and dogs in
training
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Module 2
Types of Service Animals
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Species Limitation
• Service animals are now limited to one
species—dogs.
• The definition provides that other animals
besides dogs, whether wild or domestic,
do not qualify as service animals.
• The new rules do not affect coverage of
other animals under other laws, like the
Fair Housing Act or Air Carrier Access Act.
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Miniature Horses
• Sections 35.136(c)-(h)’s and §
36.302(c)(3)-(8)’s service animal
requirements also apply to miniature
horses.
• Rules require reasonable modifications to
permit a miniature horse that has been
individually trained to do work or perform
tasks.
• Rules provide assessment factors to assist
entities in determining whether reasonable
modifications can be made.
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Assessment Factors
• The type, size, and weight of the horse and
whether the facility can accommodate those
features
• Handler has sufficient control of the horse
• Horse must be housebroken
• Whether the horse’s presence in a specific
facility compromises legitimate safety
requirements
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Types of Disabilities Service
Animals are Used For
•
•
•
•
Physical
Visual
Hearing
Hidden Disabilities which can include
cognitive, sensory, and psychiatric
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More specific examples…
•
•
•
•
•
•
•
•
Arthritis
Ataxiam (poor balance)
Autism
Blindness or Visual
Impairments
Deafness or Hearing
Impairments
Diabetes
Cardio/Pulmonary
Disease
Cerebral Palsy
•
•
•
•
•
•
Parkinson’s Disease
Physical mobility issues
Muscular Dystrophy
Multiple Sclerosis (M.S.)
Psychiatric Disabilities
Seizure Disorders
(Epilepsy)
• Spina Bifida
• Spinal Cord/Head
Trauma
• Stroke
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Examples of Tasks Performed…
•
•
•
•
•
•
•
•
Assist with way-finding
Assist with balance or standing
Alert to sound or signal
Pull wheelchair
Carrying and picking up things
Alert to oncoming seizures or asthma attacks
Alert to episodes of hypoglycemia
Alert to time to take medicine
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Psychiatric Service Animals…
• Psychiatric service animals can be trained to perform a
variety of tasks that assist individuals to detect the onset
of psychiatric episodes and ameliorate their effects:
 Reminding the handler to take medicine
 Assistance due to medication side effects (balance/
retrieval due to dizziness, waking handler if heavily asleep)
 Providing safety checks or room searches
 Turning on lights for persons with PTSD
 Interrupting self-mutilation by persons with dissociative
identity disorders
 Keeping disoriented individuals from danger
 Identifying hallucinations
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Training and Identification
• May be trained by service animal agency, private
individual/trainer, or the owner/handler themselves
• May or may not wear special collars or harnesses
• May or may not be licensed/certified and have
documentation therefore this can not be required as
proof that it is a service animal for admittance
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Other Kinds of Support Animals…
• Emotional Support Animals:
-Therapeutic pets usually prescribed by a therapist, psychiatrist, or
doctor, that help people with emotional difficulties
-Not trained to do work or tasks
-Legally, ESAs cannot go into no-pets-allowed places BUT they are
allowed in no-pets-allowed housing and in the cabins of airplanes
when accompanied by a note from their handler's doctor
• Therapy Animals:
-Pets that are typically very gentle and well-mannered and trained to
behave well in variety of settings
-“Job" is to bring a higher level of social functioning to people in
nursing homes, schools, hospitals, hospices, etc.
-Cannot go into no-pets-allowed places unless they are invited
Taken from: http://neurotalk.psychcentral.com/showthread.php?t=7204
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TRUE OR FALSE?
My doctor has diagnosed me with major
depression and anxiety disorder and
recommended I get a pet for comfort, support,
and to help me when I’m having an episode.
I got a little dog and trained it to comfort me when
depressed and calm me down when anxious.
I have the right to take the dog with me to public
places and on the public bus since it provides
this service for me.
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WELL-IT DEPENDS ON…
• How disabling those conditions are
• Whether the dog actually performs tasks that the
person is unable to perform for self
• Whether the comfort and calming actions are the
sole purpose of the dog (ESA) or merely a
bonus in addition to performing actual tasks
(PSA)
So, this is probably FALSE but need to ask
more questions first
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Module 3
Providing Access to and
Interacting with Service
Animals and Their Owners
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Title I: Employment
• The ADA covers employers with 15 or more employees,
including state/local governments.
• Employer is required to make a “reasonable
accommodation” to the known disability of a qualified
applicant or employee if it would not impose an "undue
hardship" on the operation of the employer's business.
This could include:
 Allowing job applicant or employee to have service animal
with him/her in workplace
 Allowing employee to take leave to train service animal
Taken from: www.eeoc.gov
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Specific wording on Reasonable
Accommodation
TITLE 29—LABOR: CHAPTER XIV--EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION: PART 1630_REGULATIONS
TO IMPLEMENT THE EQUAL EMPLOYMENT PROVISIONS
OF THE ADA Sec. 1630.16 Specific activities permitted.
…It may also be a reasonable accommodation to permit an
individual with a disability the opportunity to provide and utilize
equipment, aids or services that an employer is not required to
provide as a reasonable accommodation. For example, it
would be a reasonable accommodation for an employer to
permit an individual who is blind to use a guide dog at
work…employer would not be required to provide a guide dog
for the employee…
(http://edocket.access.gpo.gov/cfr_2007/julqtr/29cfr1630.16.htm)
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Undue Hardship…
Undue hardship is defined as an action
requiring significant difficulty or expense
when considered in light of factors such as
an employer's size, financial resources,
and the nature and structure of its
operation
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WHAT IF…
Nate, a receptionist at a pediatric clinic, acquired a
mobility disability from a car accident and has
decided to get a service dog to assist him. He
has used up his sick time and FMLA from after
the accident. He is asking his employer for 2
more weeks leave so that he can participate in
the required training with the dog.
Is this a reasonable accommodation?
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PROBABLY
• Certainly the employer has to consider it
• Leave is included on the list of possible
reasonable accommodations, even if it’s
unpaid leave because paid leave has run out
• If it doesn’t produce an undue hardship on
the employer’s business or resources then it
is a reasonable accommodation
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NOW WHAT IF…
Nate has the service animal and is now asking his
employer for a reasonable accommodation to let
him bring the dog to work everyday.
The employer is concerned that the dog’s
presence could negatively affect patients who
are ill or have a fear of dogs.
Is this a reasonable accommodation or would
granting it be an undue hardship?
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MOST LIKELY IT IS REASONABLE
• As long as dog does not enter treatment or
patient rooms and stays with receptionist in main
lobby/behind receptionist counter
• Employer and Nate will need to be considerate if
patient with fear of dogs is present and try to
accommodate that patient BUT the possibility of
fearful patients would not likely hold up in court
as a reason to deny this accommodation flat out
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What if someone is allergic to dogs???
• Employers may be faced with juggling the
accommodation needs of two employees i.e. when
one employee is allergic to another’s service animal.
• If both qualify as having disabilities then both need
to be accommodated regardless of who was there
first.
• Everyone will need to agree to minimize or eliminate
the in-person contact between employees as much
as possible.
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Ways to Accommodate Both…
• Work in different or private
areas
• Different paths of travel
• Communicate via email,
phone, tele/video
conferencing
• Different work schedules
• Have work areas cleaned
regularly
• Use portable air purifiers
• Use common areas at
different times
• Ask employee with animal
if they can use other
accommodations in lieu of
during shared
meetings/events
• Offer employee with
allergy allergen mask
• Add HEPA filter
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WHAT IF…
On Peggy’s first day at her new job she meets her
counterpart, Lou. Then she sees Lou’s service
dog, Ginger, on the floor. Peggy turns right
around and heads to the HR department. She
reports that she has a severe breathing disability
and being around dogs can create a critical
condition for her. HR says they wish she would
have disclosed her disability sooner since Peggy
and Lou have to work together. Peggy is now
asking to be relocated to another part of the office
and/or to work with someone else.
What should HR do?
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• Definitely need to accommodate both
employees
• Employee can disclose their disability at any
time as long as they disclose before asking for
an accommodation
• HR needs to talk with both employees to come
up with accommodations that are reasonable
and will work for both
• EVERYONE needs to work cooperatively on this
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Title II and Title III Entities
Sections 35.136(c)-(h)’s and § 36.302(c)(3)-(8)’s
“Reasonable Modification”
Public places and Private entities
A public accommodation must reasonably modify
its policies, practices, or procedures to avoid
discrimination unless the modification would
fundamentally alter the nature of the goods,
services, facilities, privileges, advantages, or
accommodations it provides
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• A public accommodation must
modify its policies to allow service
animals, unless it results in a
fundamental alteration or safety risk.
• Service Animals are not “pets”public places are required to modify
“no pets” policy to allow service
animals.
• Entity cannot insist on proof of
certification before permitting the
entry of a service animal.
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WHAT IF…
Jo is a defendant in a court case. Jo shows
up at the courthouse with a service
miniature horse. Courthouse security states
that Jo cannot have the horse in the
courtroom since animals are not allowed. Jo
explains it is a service horse. Security says
that seeing eye and hearing dogs are
allowed but not horses. Security believes
the horse would cause a disruption to the
court proceedings. Is Security within their
rights to deny access to the horse?
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Probably NOT
Courthouses are Title II entities therefore
they must modify policies to allow service
animals. Their concern about the
uniqueness of the horse and possibility of
causing disruption may be understandable
however they cannot assume it will be
disruptive. They must allow the horse in
and can only exclude it if it proves
disruptive.
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A common misconception…
“We can’t allow the animal in here because it
violates local/state health standards”
WRONG: you must admit service animals
even if local health department regulations
or state/local laws deny access because
ADA actually supersedes those.
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What about Hospitals???
• They will be either Title II or Title III entities
• Either way they comply with ADA
• Typically they will have to allow service animals
in public parts of hospital- cafeteria, lobbies,
waiting rooms, etc.
• May make argument for direct threat/health and
safety risk when it comes to patient rooms,
emergency room, etc.
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Another misconception…
“Sure you can bring your service animal with
you but we’ll have to charge you a pet
deposit”
WRONG- cannot impose extra charges,
fees, or deposits for allowing service
animal access even if typically required
for pets!
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1. What if: A traveler with a service animal shows
up at a hotel. The hotel gladly welcomes them
but mentions that there is a $50 extra fee for
service animals and pets to offset cost of extra
cleaning after guests leave. Is this ok?
2. Now what if: that same traveler gets the hotel
bill and sees a fee for cleaning the carpet
where the service animal accidentally threw up
a little. Is this ok?
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IDEA
• K-12: Students with disabilities that use
service animals are allowed to have the
animal accompany them to school as long
as they can handle or have a handler
control the animal at all times. Service
animals are usually addressed in the and
the student’s 504 plan.
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Transportation
• The ADA covers private and public transportation
• The Federal Transit Administration says “Service
animals shall always be permitted to accompany their
users in any private or public transportation vehicle or
facility”
• This includes any animal- dog, monkey, any animal- that
is trained to assist people with disabilities, including
hearing and mobility impairments.
• FTA states that “In any of these situations, the entity
must permit the service animal to accompany its user”.
-CFR Title 49 Part 37
http://www.fta.dot.gov/civilrights/ada/civil_rights_3906.html
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Air Carrier Access Act
• DOT defines a service animal as “any guide dog, signal
dog, or other animal individually trained to provide
assistance to an individual with a disability”.
• In 2003 they refined the definition to include animals that
provide emotional support.
• Animals are allowed to ride with passenger in/under seat
• Unusual service animals’ access needs to be determined
case by case and based on health and safety risks
• Airline cannot charge extra money for the animal
http://airconsumer.dot.gov/rules/382short.pdf
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Housing
• Fair Housing Act, enforced by HUD, says tenants with
disabilities are entitled to reasonable accommodations
“necessary to afford a person with a disability an equal
opportunity to use and enjoy a dwelling” even if there is a “no
pets allowed” rule
• Service Animals and Emotional Support Animals may qualify
• HUD’s position has been that animals necessary as a
reasonable accommodation in housing do not necessarily
need to have specialized training.
• But person with disability may need to “demonstrate the need
for the accommodation”.
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Let’s say there is a tenant who is deaf
and is unable to produce certification
that his dog is a service animal. Can
his local housing authority say the
dog can’t live there since pets are
not allowed and service animals
have to be properly trained and
identified?
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Interactions Involving Service Animals
Basic Etiquette:
• Relax- Do not be afraid to make a mistake
• Treat adults as adults- they are people first
• Do not distract Service Animals or attempt to
get their attention
• Do not pet/touch the Service Animal without the
handler’s permission
• Do not offer the Service Animal food
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How to Determine if it is a Service Animal:
CAN ASK:
• “Is this animal required
because of a
disability?”
• “What work or task has
this animal been trained
to perform?”
CANNOT ASK:
• “What is your
disability?”
• “Do you have proof or
identification for the
animal?”
• Questions if it’s
obvious the animal is a
service animal
Always talk to the person with respect, do not
assume they are trying to get away with something!
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How to Answer Service Animal Inquiries:
• With patience and cooperation 
• Be willing to explain what tasks the animal
performs- they are allowed to ask you that!
• You do not have to disclose your disability
unless you want to!
• You do not have to provide any kind of “proof” or
documentation that you have a service animal.
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WHAT IF…
A woman enters a store with her service animal
however it has no visible identification. The store
greeter stops the woman and says “I’m sorry, no
pets allowed”. The woman, annoyed, states that
it is a service animal. The greeter then asks in a
suspicious tone what the animal actually does
for her. Is the greeter’s questioning legal?
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YES
When someone brings an animal into a store and
no visible identification is present, the store’s
employees can ask if the animal is a service
animal, as well as what tasks the animal has
been trained to perform for its owner; however,
they may not inquire about the nature of the
owner’s disability. If an owner will not answer
such questions about their animal, a store
reserves the right to deny them entrance.
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When is it ok NOT to allow access to a
Service Animal?
• Undue Hardship
• Fundamental Alteration: when a reasonable
accommodation or modification would change
the nature of the entity so much that it no longer
resembles the original nature of the business
– Example: When a service dog barks repeatedly during
a movie then the animal can be excluded.
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Direct Threat/Health & Safety Risk…
• If animal growls at people or acts out of control, it can be
asked to leave premises. NOTE: it can be their job to
whine or bark to alert their owner of danger, pending
seizure, to take medicine, etc.
• If entity believes the animal poses a direct threat to
others then it can be denied access BUT risk must be…
– Significant and immediately identified
– Based on objective medical/factual evidence, not fear/opinions
• The FDA states that It is NOT a health risk/violation for
employees to have service animals around food!
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Exclusion of Service Animals
• General rule is that covered entities must permit
service animals.
• The revised rules, however, add two specific
exceptions of when service animals can be
excluded:
– The animal is out of control and the handler does not
take effective action to control it; or
– The animal is not housebroken.
* The handler should still be given the opportunity to
participate without the animal.
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WHAT IF…
Pablo, who is blind, goes to a buffet restaurant
with his seeing eye dog. The staff welcome him
and the dog and tell him that they typically seat
guests with service animals away from the buffet
so as not to tempt the animals with the food and
to put other patrons at ease knowing the animal
is away from the food. For this reason they also
ask that the dog remain at the table while they
help Pablo get his food from the buffet.
Is this all ok?
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NO
The restaurant must permit service animals
to accompany their owner in all areas of
the restaurant open to other patrons and
may not insist that the animal be
separated from their owner.
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WHAT IF…
Jon, a daycare employee, has a service dog
named Gil. Gil is well behaved and the children
love seeing Gil everyday. One day 4 year old
Sara had food in her hand and held it out to Gil
and Gil bit her. Jon is apologetic but says that
Gil only did that because Sara held food out,
which the children have been told not to do. The
Day Care says they are sorry but Gil can no
longer come to work with Jon due to the direct
threat risk involved. Is the Day Care right to
exclude Gil?
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YES
Direct threat has been established because
Gil bit Sara already and well trained
service animals should not bite someone
whether or not there’s food, or even
danger, involved.
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Module 4
Closing/Final
Questions/Resources
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Additional Resources
•
DOJ’s Title II and Title III regulations: www.ada.gov
•
ADA Service Animal Brief: http://www.dlrp.org
•
If you have further questions about service animals or other requirements of
the ADA, you may call the U.S. Department of Justice's toll-free ADA
Information Line at 800-514-0301 (voice) or 800-514-0383 (TDD).
•
JAN Publication on Service Animals as Workplace Accommodations:
http://www.jan.wvu.edu/media/servanim.html
•
JAN Consultants’ Corner: Service Animals and Allergies in the Workplace:
http://www.jan.wvu.edu/corner/vol02iss01.htm
•
JAN Consultants’ Corner: Service Animals in the Workplace:
http://www.jan.wvu.edu/corner/vol01iss06.htm
•
Psychiatric Service Dog Society: http://www.psychdog.org/index.html
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DBTAC-Northeast ADA Center
Employment and Disability Institute
Cornell University
Dolgen Hall Room 201
Ithaca, New York 14853-3901
Toll-Free 800.949.4232 (NY, NJ, PR, USVI)
Telephone
Fax
TTY
Email
Web
607.255.6686
607.255.2763
607.255.6686
dbtacnortheast@cornell.edu
www.dbtacnortheast.org
This program
has been funded by a grant from the U.S. Department of Education, National Institute
© Disability and Business Technical Assistance Center—Northeast
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Disability and Rehabilitation Research (Grant H133A060088).