We’ve all heard the terms – guide dog, service dog, companion animal, emotional support animal (ESA), and even service horse. In some cases, the limits have been stretched with attempts to even include birds, reptiles, etc. as service animals or emotionally necessary to support their owners and/or handlers with disabilities. In one 2018 situation, United Airlines had to deny access to a passenger in New Jersey who attempted to board a commercial flight with a peacock the owner identified as an emotional support animal. But, really, what are the legalities that regulate the appropriate use of support animals with respect to individuals with disabilities? What do the rules say?
At the federal level, the laws that address use of support animals are the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Air Carrier Access Act (ACAA). The FHA comes from Title VIII of the 1968 Civil Rights Act and prohibits discrimination concerning the sale, rental, and financing of housing based on seven protected classes, including disability. That law provides protections for animals other than service dogs and also includes companion animals and emotional support animals regarding housing. The FHA Considers those animals reasonable accommodations provided by landlords and HOAs even if standard policies prohibit animals or charge extra fees for them. The 1990 ADA covers only service dogs and miniature horses that are “… 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.” The ADA allows an individual with a disability to take a service dog or miniature horse in all places covered by the ADA where members of the public are allowed to go. The ACAA addresses individuals with disabilities who need their support animals with them on passenger airlines, and there is some flexibility regarding the type of animal permitted and documentation required. Carriers are not required to allow all types of animals in the cabin or cargo hold and they may adopt policies regarding how the animal may be transported.
The ADA is the most commonly referenced law because it applies to more environments than the other laws. For the purpose of this article, we examine the ADA and its rules regarding service animals that meet the above stated definition and how they apply. As stated, the animal must be a dog or a miniature horse AND the animal must be individually trained to do work or perform tasks for the benefit of an individual with a disability. The tasks performed must be related to the person’s disability or disabilities. If a dog or miniature horse is not trained but just naturally starts performing a task that helps an individual with a disability, it is not considered to be a service animal under definition of the ADA. The tasks a service animal performs can vary, including but
not limited to: guiding someone who is blind/low vision, providing stability, picking up dropped items, pressing door buttons or opening doors, signaling sounds for a deaf person, or indicating high blood sugar, pending seizures, or anxiety attacks.
Businesses cannot charge extra fees to customers with service animals and cannot disallow a service animal based on other customers’ allergies or fear of dogs. A business or other public entity may only ask two questions of an animal’s owner or handler: 1) Is it a service animal required because of a disability? and 2) What task(s) is the animal trained to perform? They cannot ask about the person’s disability nor ask for demonstration, certification or documentation. A vest or other ID is not required beyond standard community dog registration tag rules.
With the rights of service animal owners also come several responsibilities. If the animal is disruptive, threatening, or not housebroken, the owner can legally be asked to remove it from a public place but the person must be welcome back without the animal. If the animal causes damage, and the business typically charges all customers for damage they cause, the business may charge for damage caused by a service animal. A business or other entity is not required to provide food or care for a service animal because that’s the owner’s or handler’s responsibility. Wild or domestic animals other than dogs and miniature horses, whether trained or untrained, are not considered service animals under the ADA. The service animal must be under the handler’s control at all times and must have a harness, leash, or other tether unless the handler is unable to use it or its use would prevent the animal from performing its tasks. In that case, the person must use voice, signal, or other effective means to maintain control of the animal. The ADA does not protect service animals in training, but most states have laws providing animals in training the same allowances as fully trained animals.
It’s important to note that all citizens have responsibilities regarding service animals and animals in general. For example, almost all states have laws that protect service animals from interference, theft, and assault. Depending on the state, violators can be charged with a misdemeanor at minimum to as significant as one year imprisonment and a $10,000 fine for intentionally injuring a service animal in California. In states with such laws, restitution is required for having caused injury to service animals. The 2019 Montana Legislature passed HB 439 making misrepresentation of any dog as a service animal when it is in fact not a service animal a misdemeanor. According to the introductory statement of the bill, HB 439 was passed partially due to the increased occurrence of people bringing pets, therapy animals, or ESAs where they are otherwise not allowed and partially based on the public mistrust of service animals due to frequent misuse of the accommodation by those who don’t need them. This new law may prove somewhat problematic to enforce as the reporting of non-service animals represented as service animals is based solely on the opinion of a businessperson and whether or not they believe a particular animal is legitimate. There is also no way to verify a trained service animal since there is no certification process.
There is no doubt that service animals increase the independence and ability of their owners or handlers with disabilities. Many others who encounter these animals also enjoy having them around and seeing them perform tasks for which they were trained. With a better and clearer understanding of service animals, and laws related to them, we can all enjoy the benefits they bring and hopefully avoid conflicts.
Information in this article comes from the Rocky Mountain ADA Center, Michigan State University College of Law Animal Legal & Historical Center website, & Montana Legislative website.
