Legal Protection of Service Animals

November 30, 2020Zihao Yu

Introduction

Service animals are working animals, not pets.

Service animals are trained to assist people with disabilities with multiple tasks in everyday life. The legal protection to the service animals is regulated under the Americans with Disability Act [1], which prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications, and access to state and local government' programs and services. Service animals are regulated under the revised final regulations implementing the Americans with Disabilities Act (ADA) for title II (State and local government services) and title III (public accommodations and commercial facilities) published by the Department of Justice on September 15, 2010. The protection of service animals is part of the protection for the rights of people with disabilities so that the protection level is much higher than the protection of animals for other kinds of uses.

Service Animals

This part will discuss the definition of service animals under the Americans with Disabilities Act (ADA) and the difference with other types of animals.

Definition

According to ADA, “Service animal means any guide dog, signal dog, or other animals individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” “Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”

Current federal regulations define "service animal" for ADA purposes to exclude all species of animals other than domestic dogs and miniature horses. (ADA 2010 Revised Requirements: Service Animals". US Department of Justice. July 12, 2011.)

According to the ADA Factsheet, “[a] 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. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals.” In this language, it seems that only dogs are eligible for services animals, but in the other part of the ADA document, miniature horses are also eligible for service animals that have been individually trained to do work or perform tasks for people with disabilities. Apart from service dogs and service miniature horses, other animals are not eligible for service animals according to the ADA regulations. Service dogs are the most widely used service animals which are valued working partners and companions to over 80 million Americans. So generally, service animals are referred to as service dogs, with the exception of service miniature horses.

Other species animals can also work as service animals, such as the Capuchin monkeys, which can be trained to perform manual tasks such as grasping items, operating knobs and switches, and turning the pages of a book. In 2010, on-human primates are no longer recognized as service animals under the ADA, with the concerns on animal welfare, the potential for serious injury to people, and risks that primates may transfer dangerous diseases to humans.

“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 laws can be obtained from the relevant State attorney general’s office.”

The proposal of service animals

Studies have shown that dogs provide health benefits, and can increase fitness, lower stress, and improve happiness. Service dogs encompass all of these abilities, combined with training to perform specific tasks for individuals with disabilities. During the last decade, the use of service dogs has rapidly expanded. Service animals can work as guide animals/seeing animals, mobility animals, hearing/signal animals, psychiatric animals, autism animals, SSigDOG (sensory signal dogs or social signal dogs), seizure response animals, or medical emergency/medical alert animals.

According to the ADA Factsheet, a 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. Tasks performed can include, among other things, pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button. 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;

  • Helping individuals with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

Distinguish from other related concepts

Emotional support animals, comfort animals, and therapy dogs are not service animals under Title II and Title III of the ADA. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals either.

The Emotional Support Animal or Comfort Animal is an animal that makes the owner feel better emotionally. According to the ADA Service Animals and Emotional Support Animals, while Emotional Support Animals or Comfort Animals are often used as part of a medical treatment plan as therapy animals, they are not considered service animals under the ADA. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. Even though some states have laws defining therapy animals, these animals are not limited to working with people with disabilities and therefore are not covered by federal laws protecting the use of service animals. Therapy animals provide people with therapeutic contact, usually in a clinical setting, to improve their physical, social, emotional, and/or cognitive functioning.

For example, according to the U.S. Department of Justice, Civil Rights Division, Disability Rights Section, “If the dog has been 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, that would qualify as a service animal. However, if the dog’s mere presence provides comfort, that would not be considered a service animal under the ADA.”

Therapy dogs provide opportunities for petting, affection, and interaction in a variety of settings on a volunteer basis. Therapy dogs and their owners bring cheer and comfort to hospital patients, assisted living center residents, stressed travelers in airports, college students during exams, and in other situations where friendly, well-trained dogs are welcome. Therapy dogs are also used to relieve stress and bring comfort to victims of traumatic events or disasters. Many groups that train therapy dogs or that take dogs on pet therapy visits have matching ID tags, collars, or vest. Therapy dogs are not defined as service dogs under the ADA, do not receive access to public facilities, are not eligible for special housing accommodations, and do not receive special cabin access on commercial flights.

Courthouse dogs are another category of dogs that sometimes wear vests or display other ID, but are not service dogs. Several states have enacted measures that allow a child or vulnerable person to be accompanied by a courthouse, facility, or therapy dog during trial proceedings. The rules and requirements for use of these dogs vary by state, and additional states are considering enacting similar laws. Courtroom dogs are not protected under the ADA and are not eligible for special housing accommodations or cabin access on commercial flights.

Police dogs do work to assist the police. They can be called Police Service dogs but they are not service animals under ADA. There are two issues with police service dogs, which are On-Duty and Off-Duty. ON-DUTY: The police service dog may accompany the handler where ever the handler has a lawful right to be. OFF- DUTY: The handler must abide by the same restrictions as placed on any “pet.” Therefore, the handler would need permission to take the dog to many public and private locations. (Read more here.)

Service Animals in Training do not meet the requirement of the service animals under ADA so that they cannot have the same rights as the service animals. As they are in the process of training, the rules vary in different acts.

The Air Carrier Access Act (ACAA) does not allow “service animals in training” in the cabin of the aircraft because “in training” status indicates that they do not yet meet the legal definition of a service animal. However, like pet policies, airline policies regarding service animals in training vary. Some airlines permit qualified trainers to bring service animals in training aboard an aircraft for training purposes. Trainers of service animals should consult with airlines and become familiar with their policies.

In the employment setting, employers may be obligated to permit employees to bring their “service animal in training” into the workplace as a reasonable accommodation, especially if the animal is being trained to assist the employee with work-related tasks. The untrained animal may be excluded, however, if it becomes a workplace disruption or causes an undue hardship in the workplace.

Title II and III of the ADA does not cover “service animals in training” but several states have laws when they should be allowed access.

Other requirements

According to ADA, a service dog is trained to take a specific action whenever required, to assist a person with their disability. The task the dog performs is directly related to their person’s disability.

The breeds for service dogs vary from the usages and tasks needed to help mitigate a disability. The most common breeds trained as guide dogs are Labrador Retrievers, Golden Retrievers, and German Shepherd Dogs.

For miniature horses, 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; and (4) whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for the safe operation of the facility.

Although some service dogs may wear vests, special harnesses, collars or tags, the ADA does not require service dogs to wear vests or display identification. Conversely, many dogs that do wear ID vests or tags specifically are not actual service dogs.

A service animal must be under the control of its handler. Under the ADA, service animals must be harnessed, leashed, or tethered, unless the individual’s disability prevents using these devices or these devices interfere with the service animal's safe, effective performance of tasks. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

Legal protection for service animals in the U.S.

ADA 1990 prohibits any business, government agency, or other organization that provides access to the general public from barring guide dogs. However, religious organizations are not required to provide such access. Fair Housing Act, Air Carrier Access Act, and other acts regulate the accessibility and accommodation of service animals. The rights of the handler are also protected in the areas of employment and education. Many states also have laws that provide a different definition of a service animal. The regulations vary from state to state.

Rights for service animals’ handler

The right to privacy of the handler is protected so that there are restrictions on what questions can be asked under a certain condition. Under ADA rules, in situations where it is not obvious that a dog is a service animal, only two questions may be asked: (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? The response to question (2) must affirm that the service dog has been trained to take a specific action when needed to assist the person with a disability. These questions may not be asked if the need for the service animal is obvious (e.g., the dog is guiding an individual who is blind or is pulling a person’s wheelchair). A public entity or private business may not ask about the nature or extent of an individual’s disability or require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal, or require the animal to wear an identifying vest.

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 be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence. If a service animal is excluded, the individual with a disability must still be offered the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. If employees, fellow travelers, or customers are afraid of service animals, a solution may be to allow enough space for that person to avoid getting close to the service animal. Most allergies to animals are caused by direct contact with the animal. A separated space might be adequate to avoid allergic reactions. If a person is at risk of a significant allergic reaction to an animal, it is the responsibility of the business or government entity to find a way to accommodate both the individual using the service animal and the individual with the allergy.

Handler’s responsibility

The handler is responsible for the care and supervision of his or her service animal. If a service animal behaves in an unacceptable way and the person with a disability does not control the animal, a business or other entity does not have to allow the animal onto its premises. The animal must be housebroken and should be vaccinated in accordance with state and local laws, and must be under the control of the handler. The entities are not required to provide for the care or supervision of a service animal, including cleaning up after the animal. For a miniature horse, an entity may also assess the type, size, and weight of a miniature horse in determining whether or not the horse will be allowed access to the facility. Uncontrolled barking, jumping on other people, or running away from the handler are examples of unacceptable behavior for a service animal. A business has the right to deny access to a dog that disrupts their business. Businesses, public programs, and transportation providers may exclude a service animal when the animal’s behavior poses a direct threat to the health or safety of others.

Accessibility

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 allowed to go. Title II of the ADA covers state and local government facilities, activities, and programs. Title III of the ADA covers places of public accommodations. Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals.

Accommodation

The Fair Housing Act (FHA) as amended in 1988, protects a person with a disability from discrimination in obtaining housing. Under this law, a landlord or homeowner’s association must provide reasonable accommodation to people with disabilities so that they have an equal opportunity to enjoy and use a dwelling. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability in all housing programs and activities that are either conducted by the federal government or receive federal financial assistance.

A landlord or homeowner’s association may not ask a housing applicant about the existence, nature, and extent of his or her disability. However, an individual with a disability who requests a reasonable accommodation may be asked to provide documentation so that the landlord or homeowner’s association can properly review the accommodation request. They can ask a person to certify, in writing, (1) that the tenant or a member of his or her family is a person with a disability; (2) the need for the animal to assist the person with that specific disability; and (3) that the animal actually assists the person with a disability.

Transportation and Air Travel

A person traveling with a service animal cannot be denied access to transportation, even if there is a “no pets” policy. In addition, the person with a service animal cannot be forced to sit in a particular spot; no additional fees can be charged because the person uses a service animal; and the customer does not have to provide advance notice that he or she will be traveling with a service animal. The laws apply to both public and private transportation providers and include subways, fixed-route buses, Paratransit, rail, light-rail, taxicabs, shuttles, and limousine services.

The Air Carrier Access Act (ACAA) requires airlines to allow service animals and emotional support animals to accompany their handlers in the cabin of the aircraft. For evidence that an animal is a service animal, air carriers may ask to see identification cards, written documentation, presence of harnesses or tags, or ask for verbal assurances from the individual with a disability using the animal.

Employment and Education

Laws prohibit employment discrimination because of a disability. Employers are required to provide reasonable accommodation. Allowing an individual with a disability to have a service animal or an emotional support animal accompany them to work may be considered an accommodation. The Equal Employment Opportunity Commission (EEOC), which enforces the employment provisions of the ADA (Title I), does not have a specific regulation on service animals. Both service and emotional support animals may be excluded from the workplace if they pose either an undue hardship or a direct threat in the workplace.

Students with disabilities in public schools (K-12) are covered by the Individuals with Disabilities Education Act (IDEA), Title II of the ADA, and Section 504 of the Rehabilitation Act. Under the ADA, colleges and universities must allow people with disabilities to bring their service animals into all areas of the facility that are open to the public or to students. Colleges and universities may have a policy asking students who use service animals to contact the school’s Disability Services Coordinator to register as a student with a disability.

Legislation in Asian Countries

The legislation on service animals depends on the protection level for people with disabilities. The idea of service animals or assistant animals is not widely accepted in all Asian countries, and protection is always limited to international airlines.

In Japan, the term "assistance dogs" refers to "guide dogs," "mobility service dogs," and "hearing dogs" certified in accordance with the "Act on Assistance Dogs for Persons with Physical Disabilities." However, this act does not apply to overseas assistance dogs and their users. In South Korea, it is illegal to deny access to guide dogs in any areas that are open to the public. Violators are fined for no more than 2 million won. In Singapore, service animals are defined as assistance animals with the breeds restriction.

Conclusion

Service animals are protected to ensure the rights of the people with disabilities so that they shall have a higher level of protection with the conflict with other sort of rights. They are important working animals and shall be respected and protected in daily life as well as in the legal system.

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