Service Animals Under Titles II and III of the ADA

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

In this episode, we will discuss service animals under Titles II and III of the Americans with Disabilities Act (ADA), and Title I of the Americans with Disabilities Act. We covered service animals under the Air Carrier Access Act in the episode titled About the Air Carrier Access Act. We will cover service animals under the Fair Housing Act when we discuss the Fair Housing Act.

Service Animals Under Titles II and III

The information covered in this section of the episode is based on two documents from the Department of Justice (DOJ). The document titled Service Animals has lots of information as to how Titles II and III cover service animals. The document titled FAQs About Service Animals and the ADA answers more than 30 questions you may have about service animals under Titles II and III.

Definition of a Service Animal

A service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability.

Performing work and Doing Tasks

The dog must be trained to take a specific action when needed to assist the person with a disability. Examples of work or tasks service animals do include but are not limited to the following:

• Guiding a blind person
• Alerting a person with diabetes when their blood sugar is too low
• Notifying someone with depression that it’s time for them to take their medication
• Indicating to a person with epilepsy prior to the onset of a seizure and help them remain safe

Emotional Support Animals

Dogs providing strictly emotional support, comfort, therapy, or companionship are not considered service animals under Titles II and III. Some state and local governments have passed laws allowing emotional support animals into public places. If you have an emotional support animal, check with your local government to see if it has such a law and to find out what it allows and requires.

Psychiatric Service Animals

Although animals providing strictly emotional support are not covered under Titles II and III, service animals trained to do work or complete tasks related to a disability are covered under Titles II and III; for example, if an animal has been trained to understand when its handler is having anxiety, and to take certain action(s) to lessen the seriousness of the attack, the animal qualifies as a service animal under Titles II and III.

Training Service Animals

• A person is not required to have their service animal trained by a professional organization.
• Service animals in training, whether being trained by a private person or a professional organization, are not legally considered service animals.

Questions Covered Entities can Ask

When a covered entity has questions as to whether a particular dog qualifies as a service animal, it is only allowed to ask two questions:

1. Is the service animal required because of a disability?
2. What work or task has the dog been trained to perform?

They cannot ask for any documentation related to the dog, require that the dog demonstrate the task it has been trained to perform, or ask about the nature of your disability.

General Points

• The ADA does not require service animals to wear a specific harness, vest, or ID tag.
• The handler is responsible for caring for and supervising the service animal. This includes, feeding, toileting, grooming, and veterinary care.
• Service animals are allowed in salad bars and other self-service food lines.
• Service animals are allowed in communal food areas similar to those that may be found in dormitories or shelters.
• Hotels cannot assign certain rooms to handlers of service animals. People with disabilities must have the same opportunity to reserve any room that could be reserved by someone without a disability.
• Hotels cannot charge a cleaning fee for service animals; however, if a service animal damages a room, the hotel can charge for that damage.
• A person with a disability may use more than one service animal at the same time. In those cases, both service animals are entitled to the same access. If the space in question (like a small crowded restaurant) cannot accommodate both service animals, the restaurant can ask that one service animal be left outside.
• Hospitals must allow in-patients to keep their service animal in their room.
• If a patient’s medical condition prevents them from caring for their service animal, the hospital must allow them to make arrangements to have someone come to the hospital and care for the service animal.
• If the patient is unable to care for their service animal and they cannot make other arrangements, the hospital is permitted to board the service animal for the duration of the patient’s hospital stay.
• Before placing a service animal in a boarding facility, the hospital must provide the patient the opportunity to make other arrangements.
• Generally, service animals are allowed in ambulances if their handler is being transported.
• If transporting the service animal in an ambulance would interfere with the ability of medical professionals to treat the individual, the medical professionals must make other arrangements to have the service animal transported to the hospital.

Certification and Registration

• Covered entities may not require documentation proving a service animal has been certified, trained, or licensed as a service animal.
• Documents you can buy online from individuals or organizations certifying your service animal are not legally valid and provide no legal protection.
• Local animal control ordinances requiring dogs to be vaccinated apply to service animals.
• Service animals are subject to local dog licensing and registration requirements.
• Local governments cannot require you to register your service animal as a service animal.
• Covered entities may offer voluntary registration programs for service animals, but they cannot force you to register your service animal.

Breeds of Dog

• The ADA does not limit the breeds of dogs that can work as service animals.
• A service animal, regardless of breed, has the same legal protections.
• If a local government has a ban on certain breeds of dogs, those legal restrictions do not apply to service animals.

Direct Threat

• Covered entities can deny service animals entrance if a specific service animal poses a direct threat to the health or safety of others.
• If a service animal is denied entrance, the decision to deny entrance must be based on an objective assessment of the specific service animal’s behavior or history.

Excluding Service Animals

The ADA does not require covered entities to modify policies, practices, or procedures if making certain modifications would “fundamentally alter” the nature of the goods, services, programs, or activities provided to the public. Nor does it overrule legitimate safety requirements. If admitting service animals would fundamentally alter the nature of a service or program, service animals may be prohibited. In addition, if a particular service animal is out of control and the handler does not take effective action to control it, or if it is not housebroken, that animal may be excluded. Examples of when allowing a service animal would “fundamentally alter” its activities, programs, and services include:

• Service animals can be prohibited from swimming pools, but they must be allowed in the pool area.
• Service animals can be prohibited from certain sections of zoos where the presence of service animals would be disruptive to the zoo animals.
• If a dormitory reserves areas for people with allergies, service animals can be prevented from entering those areas.

Under Control

• The ADA requires service animals to be under the control of their handler at all times.
• This means the service animal must be harnessed, leashed, or tethered in public places unless these devices interfere with the service animal’s ability to perform the work it has been trained to perform or the handler’s disability prevents them from using those devices.
• If the service animal cannot be physically tethered to its handler, the handler must maintain control through voice commands, hand signals, or other effective methods of communication that allow the handler to maintain control.
• If a service animal must be off leash to do its job, but the handler’s disability does not prevent them from using a harness, leash, or tether, the service animal must be tethered when it is not working.
• Service animals cannot bark repeatedly. But if they bark once or they are provoked into a few barks they cannot be excluded.
• If a service animal is out of control and the handler is demonstrating and inability to control the service animal, the service animal can be excluded.

Miscellaneous Provisions

• Hotel guests are not permitted to leave their service animals in hotel rooms unattended.
• Stores cannot require that you put your service animal in a basket or cart.
• Places serving food are not required to allow you to feed your service animal at the table or allow it to sit at the table.
• Places of worship are not required to allow service animals entrance because religious institutions are exempt from the ADA.
• Federal agencies are not covered by the ADA, but they are covered by Section 504 of the Rehabilitation Act of 1973.
• The ADA applies to public housing programs administered by local governments and to places of public accommodation such as public and private colleges and universities.

Service Animals Under Title I

Sadly, this section will be very short:

• Title I of the ADA covers employment of people with disabilities.
• Service animals are not mentioned anywhere in Title I.
• If a job applicant or employee is the handler of a service animal, they must use the typical reasonable accommodation process under Title I to gain employer approval to bring their service animal to work.
• Talking more about this would go beyond the scope of this episode. We will revisit it when we discuss Title I.
• If you need information about service animals in the workplace now, the Job Accommodation Network (JAN) has a page on service animals at work.

Miniature Horses

While the ADA focuses on dogs as service animals, there is an exception for miniature horses. For the exception to apply, all of the things we have discussed here about service animals must be true; for example, the miniature horse must be trained to work or perform a specific task related to your disability. DOJ makes the following recommendations when covered entities are considering modifying policies, practices, and procedures to allow miniature horses trained to be service animals entrance:

• 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
• Whether the miniature horse’s presence will not compromise legitimate requirements necessary for safe operation of the facility

If a covered entity does not believe it can reasonably accommodate a miniature horse it is not required to allow the miniature horse entrance as long as the denial is legitimately related to the four factors presented above.

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