This guest post was authored by Heather DeBlanc
The American Disabilities Act (ADA) used to allow any animal to qualify as a “service animal” as long as it was trained to do a task for an individual with a disability. In the early 1990’s, when the Department of Justice originally issued its regulations, ADA did not define the parameters of acceptable animal species. Over the last decade there has been an increase in the number of unusual animals, such as pigs, snakes, iguanas, miniature horses and parrots, which have been promoted as service animals. There has also been a rise in the number of people who abuse laws by claiming their pet is a service animal.
Effective March 15, 2011, new laws have narrowed the definition of service animal to include only dogs and miniature horses. The definition specifically excludes all other species and clarifies that emotional support animals or pets are not service animals. The discernable quality of a service animal is that, when the handler is in distress or needs something, it is trained to respond. Where an animal’s mere presence provides comfort or support, it is not a service animal.
ADA Title II applies to state and local governmental entities. ADA Title III applies to businesses and nonprofit entities that are “public accommodations,” and private entities that offer examinations and courses related to educational and occupational certification. Covered entities must modify policies, practices and procedures to permit use of service animals to accommodate individuals with disabilities. (See 28 C.F.R. §§ 35.136(a) and 36.302(c).) Under ADA and Rehabilitation Act (for purposes other than housing) the definition of service animal is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. . .” The regulations also carve out an exception for miniature horses as service animals if they meet certain assessment factors. California law only references dogs and no other species. Because federal laws impose additional requirements, an entity’s policies and procedures should comply with the federal requirements.
A public agency may have a service animal removed from the premises if it is out of control and the handler does not take control or if the animal is not housebroken. Also, the agency is not allowed to ask about the nature or extent of a disability, but may make two inquiries: 1) whether the animal is required because of a disability or 2) what work or task the animal has been trained to perform. The agency should not make these inquiries when it is readily apparent that the animal is trained to perform tasks for an individual with a disability. However, no documentation or proof of certification is required to prove the animal is a service animal and no surcharge may imposed because of the animal’s presence.
The standards for on-campus housing at a college or university are different. The U.S. Department of Housing and Urban Development (HUD) has interpreted the FHA to require accommodation of “assistance animals.” Assistance animals include “species other than dogs, with or without training, and animals that provide emotional support.” The animal may not be permitted under certain circumstances (i.e. threat to health and safety, may cause property damage, or poses certain burdens).
Covered entities should update their policies and procedures to ensure compliance with the new accommodation requirements.