We're going to start a three-part podcast today on service animals and the law. It's going to be three parts because we're going to basically talk about service animals under the Americans with Disabilities Act today in part one. Then in part two we'll talk about service animals under the Fair Housing Act and how they're treated there, then part three will be service animals under the Air Carrier Access Act.

So today we're going to talk about the ADA. And.just as a reminder, the Americans with Disabilities Act has five Titles. Title One covers employment, Title Two covers state and local governments, Title Three covers places of public accommodation, Title Four covers telecommunications, and Title Five has a lot of miscellaneous provisions that we won't be interested in talking about today. But service animals and therapy animals are treated differently under different Titles, so we're going to be looking at different Titles of the ADA today.

So the definition of a service animal hundred under the ADA currently is "any guide dog, signal dog, or other animal 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." Now that definition is right out of the ADA. But the reason I emphasized the word "currently" when I said what the definition was, is because the Department of Justice has issued new ADA regulations that are expected to be enacted sometime in the next several weeks to several months. But they are not in force yet. These regulations are not finalized. So when we're talking about new regs, we're talking about the proposed regulations. And those new regs are going to affect information on service animals and other animals that are used by people with disabilities. So I'll probably do another podcast then, once the regs are in effect. But we're actually going to talk about the new regulations alongside the old ones today.

And te reason that the Department of Justice is proposing new regulations is because the DOJ receives a large number of complaints from people who use service animals that indicate that a large number of businesses and other covered entities are confused about their obligation when it comes to service animals. And there's also confusion about how service animal is defined and whether comfort animals are covered under service animals. Some individuals who do not have a disability claim that their animals are service animals. And other people who may have a disability claim either fraudulently or sincerely, albeit mistakinly, that their animals are service animals even though the animal does not meet the definition of service animal. So the Department of Justice hopes that the new proposed regs will clear up some of the confusion, both on the part of businesses, as well as on the part of people with disabilities.

So under the new proposed regulations, there are more tasks that are listed as examples, such as assisting an individual during a seizure, retrieving medicine, or retrieving the telephone, providing physical support to assist with balance and stability to individuals with mobility disabilities and assisting individuals, including those with cognitive disabilities, with navigation. And under the new proposed regs, the definition of service animal now includes a specific list of animals that are excluded, even if they are service animals under the current law. And these include wild animals, including nonhuman primates born in captivity, reptiles, rabbits, farm animals including any breed of hourse, pony or miniature horse, pigs, goats, ferrets, amphibians, and rodents. So those animals are now excluded and the most common of those that are used as service animals are monkeys and miniature horses.

So, what is a therapy animal? Currently there is no definition of a therapy, comfort, or emotional support animal in the ADA. These animals are not covered by the ADA because they do not meet the definition of service animal. So even though there's no separate definition for therapy animal, if the animals don't meet the definition of service animal, then they're simply not covered by ADA. And refer back to what that definition is, because therapy animals are not the same service animals. When the new proposed regs going to effect, the DOJ's position on whether comfort animals are covered as service animals is, and I'm quoting here, "animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits or promote emotional well-being are not service animals."

Now, because of the APA requirement that animals be able to do work or perform tasks, in most cases animals that assist people with psychiatric disabilities were considered to be comfort animals and therefore not service animals. But the new proposed regs recognized that there are psychiatric service animals. The new regs discuss psychiatric service animals that can be trained to perform a variety of tasks for individuals with disabilities including detecting the onset of psychiatric episodes, or ameliorating their effects. Other examples of tasks that might be performed by psychiatric service animals include reminding a person to take medication, turning on lights, or performing safety checks for persons who have Post-Traumatic Stress Disorder, interrupting self-mutilation for individuals who have Dissociative Identity Disorders, and keeping disoriented persons from danger.But, this expressly does not expand the definition of service animals to include comfort animals.

In general, service animals have protections under the ADA, but comfort animals do not. The new regs, however, do recognize that the exclusion of comfort animals is specifically for non-employment provisions of the ADA, and that such animals might be differently considered in employment settings, where there might be compelling reasons to allow comfort animals as a reasonable accommodation.

So what proof do you need that your animal is a service animal? Well, a service animal is not required to wear a special collar or a harness. A service animal is not required to have papers certifying its training. So if it isn't obvious, how does a business know whether an animal is a service animal? Well, it's alright to ask the handler if the animal is a service animal required because of a disability. It's all right asked whether the animal performs specific tasks for the person. But disability specific questions may not be asked. In January of 2009, the DOJ and Wal-Mart reached an agreement about service animals in which Wal-Mart agreed that only a greeter or store manager may ask one question and only one question of the person with a disability using a service animal. And the question can be asked only if the need for the animal is not obvious. And the single question is, "Is this a service animal required because of a disability?"

Because of the nature of their work it is unusual for a service animal to ever display out of control behaviors. But businesses may be exclude an animal whoses behavior poses a direct threat to the health or safety of others. This must be based on actual risk, and not on potential risk or generalizations. Or, you know, "I know a dog that bites people so therefore your dog can't come in." But what about other people? Sometimes other customers might be afraid of service animals and if that happens it might be possible to allow that customer to avoid getting too close to the service animal.

A business may not charge a deposit, a surcharge, a cleaning fee or any other fee, to an individual with a disability as a condition to allowing a service animal to accompany the individual, even if the business has a policy of charging customers fees or deposits for pets. Service animals are not pets. Entities, especially schools, colleges, and universities, often have problems with service animals being unclean or downright stinky. And it's alright to have a policy that says that the dog must be clean and free from offensive odors.

Although an entity may not require proof of training or any kind of certification for a service animal, it is alriht to require proof that the animal is current on all vaccinations that are required by law, just like all the animals in that vicinity would have to have.

Now, under Title One, which covers employment, service animals are, of course, allowed to accompany individuals to their places of employment. But in the case of employment, comfort animals might be allowed under certain circumstances as a reasonable accommodation for a person with a disability. This would be pretty rare and it would have to be decided on a case-by-case basis. But comfort animals may be allowed under Title One. Under Title Two, which covers state and local governments, state and local governments may not prohibit service animals from programs or services of the government entity, and surcharges or deposits may not be charged, even if they are charged for other animals, such as pets. Title Three covers places of public accommodations including places like hotels, restaurants, bars, theaters, auditoriums, parks, stores, law offices, doctors' offices, banks, bus stations, museums, amusement parks, salons, dry cleaners, spas, Social Service centers, golf courses, real estate offices, gyms and coffee shops. It may not excludes service animals from any area that's open to the public.

The ADA also applies to transportation providers. If the provider is a government entity, as is the case for subways, fixed route bus services, paratransit rail, light rail, these are covered under Title Two. If the provider is a private entity that offers taxi, car service, limo service, things like that, that's covered by Title Three. And they are required to allow service animals on public transportation as well as in private transportation.

So that covers service animals under the ADA. I hope you'll tune in for part two of this in which we will cover the Fair Housing Act. Thanks for tuning in.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.