Date: March 2018 Bulletin
Federal and state laws provide certain protections to individuals with disabilities who use service animals. As the use of service animals expands, so does the potential for violating these rights. A complicating factor is the recent trend of people claiming that their untrained pet is a service animal in order to bring the pet into a facility where it would otherwise be prohibited. A public entity’s well-meaning attempt to curb this abuse of federal and state law could also inadvertently create liability. Knowing the basics of service animal law will assist in managing this risk.
Individuals with disabilities use service animals for a variety of reasons. The most familiar is likely the use of a guide or a “seeing-eye” dog by an individual who is visually impaired. Service animals may also be used by individuals who are deaf or hard-of-hearing to alert them to the presence of people or sounds. Individuals with mobility impairments may rely on trained service animals to assist with movement, balance and stability or to retrieve items. Service dogs have been trained to recognize when an individual is about to have a seizure and provide assistance. Individuals with post-traumatic stress disorder (PTSD) may use service dogs to provide safety checks, room searches or turn on lights.
The first issue of which to be aware when considering the rights of individuals who use service animals is that different laws apply to different situations. This article discusses the standards under the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) that apply in a public service setting versus an employment setting.
There are other laws related to service animals, such as Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act, that may apply to an MCIT member’s activities. To the extent that other laws apply, MCIT members are encouraged to discuss these laws with their legal counsel.
Under Title II of the ADA, state and local government services, programs and activities (“public services”) must modify policies, practices or procedures to permit the use of a service animal by an individual with a disability.1 Section 363A.19 of the Minnesota Human Rights Act (MHRA) contains similar provisions related to service animals and public places.2
Service animals are specifically defined in Title II of the ADA as “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” (28 C.F.R. §35.104). In some circumstances, a miniature horse may be considered a service animal if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability (See 28 C.F.R. §35.136(i) for more miniature horse considerations).
Other animals, whether trained or untrained, are not considered service animals under the ADA’s definition for public services.
To be a service animal under the ADA, the animal must be trained for work or tasks that are directly related to the individual’s disability (28 C.F.R. §35.104). Animals whose sole function is to provide emotional support, well-being, comfort or companionship are not considered service animals protected under the ADA.3 The United States Department of Justice has stated: “Service animals are working animals, not pets.”4
Government entities must generally permit a service animal to accompany an individual with a disability anywhere in a facility that the public is generally entitled to go. An exception to this rule is where the animal’s presence could create a legitimate safety risk or would fundamentally alter the nature of the entity’s services.5
For example, in a hospital setting, service animals would generally be allowed in patient rooms or examination rooms but not in operating rooms or sterile burn units. Public health laws and rules are generally overridden by the ADA with the exception of rules related to swimming pools.
The ADA requires the service animal to be under the control of its handler at all times (28 U.S.C. § 135.136(d)). The animal must have a harness, leash or tether, unless the handler is unable to use such a device due to his or her disability or it would interfere with the service animal’s safe, effective performance of work or tasks. In that case, the handler must maintain control of the dog through voice, signal or other effective means.
A public entity can ask an individual with a disability to remove the service animal from the premises if the animal is out of control and the handler does not take effective action to control it, or if the animal is not housebroken (28 U.S.C. § 135.136(b)). The public entity must still give the individual with a disability the opportunity to participate in the service, program or activity without the animal present (28 U.S.C. § 135.136(c)).
In situations where it is not readily apparent that the dog is a service animal, the ADA permits a public entity to ask only if the dog is required because of a disability and if so, what work or task the dog has been trained to perform (28 U.S.C. § 135.136(f)).
A public entity cannot ask an individual using a service animal about the nature and extent of his or her disability or require an individual with a disability to provide documentation that the animal has been certified or trained as a service animal.
Public entities may not exclude a service animal due to general fears or concerns about the animal’s breed, even if that particular breed of dog is regulated by a municipality.6 However, public entities may determine on a case-by-case basis whether a particular service animal poses a direct threat based on the animal’s actual behavior or history. Service animals that pose a direct threat may be excluded from the premises.
Individuals using service animals cannot be isolated from other individuals, treated less favorably or charged fees that are not charged to individuals who do not use a service animal.7 Fear of dogs or allergies are not valid reasons for excluding a service dog under the ADA. In the case of allergies, the government entity may need to accommodate both the individual with the allergy and the individual using the service dog.
Risk Management Suggestions
- Train staff about the rights of individuals with disabilities to be accompanied by a service animal, including the two questions that staff may legally ask if they question whether the animal is a service animal.
- If there are areas of a facility in which there is a legitimate concern regarding the presence of a service animal, designate these areas in advance and document the reasons for the concern. Determine how the individual with a disability will be able to participate in the service, program or activity without the animal.
- Have an established plan to deal with a situation in which an individual must be asked to remove the service animal because the animal is out of control, is not housebroken or poses a direct threat. Remember that the government entity is still responsible for providing the individual with a disability the opportunity to participate in the service, program or activity without the animal.
- Consult with legal counsel regarding specific questions about application of the laws about service animals.
Employment situations are covered under a different section of the ADA, namely Title I.8 Title I requires employers to make a reasonable accommodation for a qualified applicant or employee with a disability unless the employer can demonstrate that the accommodation would impose an undue hardship on business operations (42 U.S.C. §12112(b)(5)(A)).
Unlike Title II, Title I of the ADA does not provide guidelines specific to service animals. Instead, the ADA requires employers to treat an employee’s request to bring a service animal to work as it would any other employee request for a reasonable accommodation.9
That is, the employer must consider the request and engage in the interactive process with the employee. This process helps determine whether an accommodation is needed and if so, to identify an effective and reasonable accommodation that permits the employee to perform the essential functions of the job.10
The above presumes that the entity has a no-animals/pets-in-the-workplace policy. If employees are permitted to bring pets into the workplace, the employee with the service animal should be permitted to bring the service animal in the same manner without the accommodations process. To do otherwise could be disability discrimination.
There is no definition of “service animal” under Title I. Accordingly, a request to bring a service animal into the workplace should not be rejected solely because the animal is not a dog or a miniature horse.
In the course of the interactive process, employers may request that the employee provide documentation or a demonstration that the service animal is needed (when that need is not obvious) as an accommodation for the employee’s disability and that the animal is appropriately trained and will not be disruptive in the workplace.11
The Job Accommodation Network (JAN), a service of the United States Department of Labor, advises that this documentation may not always come from a health care professional but may come from a service provider, such as the service animal’s trainer.
There is no automatic requirement under the ADA that an employer allow an employee to bring a service animal to work. Employers are permitted to choose among effective accommodations to find one that is reasonable.
Title I permits an employer to reject a request for accommodation if it is an undue hardship to the employer’s business operations. However, employers should seriously consider an employee’s request for a service animal, as finding an effective substitute accommodation may be difficult, particularly if the animal is helping with a medical or personal issue.12
Employers are not required to purchase or provide a service animal to an employee as an accommodation.
An employee with a service animal is responsible for taking care of the animal while at work. However, the employer may need to allow the employee the time to do so as part of the reasonable accommodation.13
In the case of allergic co-workers, the government entity may need to accommodate both the individual with the allergy and the individual using the service dog.
Risk Management Suggestions
- Follow the entity’s standard policies and procedures for processing requests for accommodation, including the interactive process, when receiving a request from an employee regarding a service animal.
- Consult with human resources and legal counsel.
- When evaluating the request, JAN suggests considering the following questions:
- What limitations is the employee who uses a service animal experiencing?
- How do these limitations affect the employee and the employee’s job performance?
- What specific job tasks are problematic as a result of these limitations?
- What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
- Has the employee who uses the service animal been consulted regarding possible accommodations?
- Once accommodations are in place, would it be useful to meet with the employee who uses the service animal to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
- Do supervisory personnel and employees need training regarding the use of service animals?
MCIT recommends that members consult their legal counsel about any questions related to the application of the laws and when developing or modifying their policies or practices.
Service Animal Helpful Resources
U.S. Department of Justice, ADA.gov:
- “ADA Requirements: Service Animals”
- “Frequently Asked Questions about Service Animals and the ADA”
Minnesota Department of Human Rights, MN.gov/mdhr/:
- “Your Rights: Service Animals”
- “Service Animal FAQs”
Job Accommodation Network publications, AskJAN.org:
- “Service Animals in the Workplace”
- “Service Animals and Allergies in the Workplace”
Equal Employment Opportunity Commission, EEOC.gov:
- “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act”