As we look at Amazing Dogs, one in particular comes to mind: the Service Dog! Service dogs are a necessary support for many individuals and as the many capabilities of dogs are revealed along with their many uses the law becomes important to guide us in this area. The increased use of service dogs and uptick in desire to have a service dog at the same time raises many questions.
As an attorney, I am not providing legal advice but I was curious about the growing use of service dogs and wanted to provide some helpful information for those thinking about getting one or wondering if the dog they know could become a service dog dog.
Common questions regarding service dogs include, can my dog be a service dog and legally be allowed on planes and restaurants and many public places? Can I use a service dog for ADHD, anxiety, PTSD and more? Read on for answers.
Laws that Govern Service Dog Access
The Laws in the United States that govern service dogs are many including state laws in each state and Federal laws that govern all states. Any Federal Law trumps any state law that provides less access for service dogs in public places.
The primary United States laws that govern Service Dog access are:
- Title III of the Americans with Disabilities Act (public accommodations)
- Title II of the Americans with Disabilities Act (public facilities)
- Title I of the Americans with Disabilities Act (Employment)
- Fair Housing Act
- Air Carriers Act
- Individual State Laws
ADA Service Dog Law Public Accommodation
The main law in the US that governs service dog public accommodations is Title III of the Americans with Disabilities Act (“ADA”).
Title III of the ADA provides that:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodations by any person who owns, leases (or leases to), or operates a place of public accommodation.”
28 CFR Section 36.302(c) of the ADA provides that reasonable accommodations may be a service dog and that a service dog shall be allowed to be used.
“Generally, a public accommodation shall modify policies, practices, procedures to permit the use of a service animal by an individual with a disability.”
This is great to understand and learn the law but the law also brings up many more questions such as what is a service dog? What is a disability? Where can you bring your service dog and not be discriminated against? Most importantly, the ADA says “animal” can I have another animal provide services? We will handle each further question in order.
What is a Service Animal?
The definition of a service animal is contained in the Federal and certain state laws. Federal law in 28 CFR Section 36.104 provides the definition of a service animal which is
“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.”
You will note that there are no height and weight restrictions under the ADA for a service dog. This makes sense since if one considers the true activities of service dogs: small dogs are fully capable of alerting to allergens, blood sugar issues for diabetes or many other tasks that service dogs perform.
There are also no breed restrictions under the ADA for the same reason. However, certain local ordinances are trying to limit certain service dog breeds such as pit bulls in public places. Those local ordinances will be superseded by the ADA since local ordinances cannot limit the ADA or be more restrictive.
However, one common and consistent requirement is that service dogs must be individually trained to perform work or perform tasks for the person with the disability. There has been a burgeoning number of service dogs that can do so many helpful things for their handler but whether or not they qualify as a service dog is another issue and training is the differentiator.
To qualify as a service dog the dogs must have been trained to do a specific task for the person with a disability. For instance, dogs have been trained to recognize the signs of a seizure, and ensure that the handler moves to safer areas and protects the handler. Service dogs supporting psychiatric disabilities may enter into an unknown room before a handler to check and ensure that the room is safe.
There are certain psychiatric service dogs that at the signs of anxiety or panic attack the service dog will take steps to stop it like providing deep pressure therapy like a weighted blanket to avert panic attack and manage it once it has started. They may also provide comfort to the person with anxiety but the service dog is trained to do a specific task to support the disability.
This is contrasted to an emotional support dog. Emotional comfort is not a task and therefore it is different. Providing comfort although important for many does not qualify a dog as a service dog under the law.
What is a disability that one can use a service dog for?
Service dogs can be used for mental and physical disabilities that impede one’s life.
Certain mental disabilities that a service dog may support include:
- Depression and Depressive Disorders
- Anxiety Disorders & Phobia
- Bipolar Disorders
- Schizophrenia and Psychotic Disorders
- Attention Deficit Hyperactivity Disorder (ADHD)
- Addiction, Substance-Abuse, and Alcoholism
- PTSD, Trauma & Stress-Related Disorders
- Obsessive-Compulsive Disorders
- Dissociative and Personality Disorders
- Neurocognitive and Sleep-Wave Disorders
Service dogs may help with the following physical disabilities:
- Multiple Sclerosis (MS)
- Sensory Disabilities (Blind, Deaf, etc.)
- Cerebral Palsy
- Parkinson’s Disease
- Muscular Dystrophy
- Spinal Cord Injury
- Chronic Pain
- And more…
The test is generally whether the disability impedes one’s life, requiring a more comprehensive analysis of what we have traditionally said is a disability.
Who can train a Service Dog?
Since a Service Dog must be individually trained to perform work or perform tasks for the person with the disability they must be extremely well trained.
A service dog’s typical training lasts from 6 months to 2 years and beyond. However, a service dog does not need to be trained by an organization or receive some sort of certification or pass a test. Due to the costs of training anyone can train their own service dog or can work with a program to train their service dog.
Where can a service dog go?
A service dog can go almost everywhere. The ADA defines what a place of public accommodation (where a service dog needs to be accommodated) as:
- Inns, hotels, motels
- Restaurants and Bars
- Movies, theaters, auditoriums,
- Museums, libraries
- Stores, including grocery and retail stores,
- Medical offices and hospitals
- Schools including nursery schools, day care centers and universities
- Gym and other places of recreation
Generally service dogs can go anywhere as long as they behave with the exception of religious institutions or private clubs. These facilities may allow a service dog but they are not absolutely required to allow a service dog under the ADA.
Along with behaving there are also certain restrictions to some public accommodation obligations. For instance, if the public accommodation can demonstrate that allowing access to a service dog would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations then the dog’s presence may be limited.
For instance, there are some restrictions on where in the gym a service dog can go but typically a service dog will be trained to stay in the areas they are allowed.
It is important to note that local jurisdictions, property owners, managers or businesses cannot add any extra burden to the handler and the dog when providing access. For instance, a Hotel or restaurant may not put the service dog and the handler in the back of the restaurant only or the most remote hotel room or have certain rooms for people with dogs.
A service dog also has to be leashed or tethered unless the leash will interfere with dogs job. Even if a dog is not leached it still needs to be under the control of the handler. Practically speaking, 95% of service dogs are harnessed leashed or tethered, often with a very short leash.
Can a Hotel Charge Pet Fees to Service Dogs?
No, a hotel may not charge pet fees, cleaning fees or deposits for service dogs. Service dogs are not considered to be a pet, therefore any pet fees or rules that apply to a pet do not apply to a service dog, however, if a service dog does provide damage, just as any damage may have to be compensated for a business so to, would damage caused by a service dog.
Can a Service Dog go to a Hospital?
Yes, hospitals are required to allow service dogs but they may be limited. Service dogs can stay overnight in hospital rooms, but they do not have to be permitted in the emergency room.
It is also important to note that the patient must make arrangements for feeding and care of the service dog. Hospital staff are not obligated to care for pets.
Public accommodations that allow service dogs can assess whether the service dog fundamentally alters the nature of the services. Sterility in the operating room could damage the sterile environment, which is why service dogs may be limited there where on the other hand medical offices have to allow service dog access.
Similarly, swimming pools can say that service dogs should not go in but are allowed to be on the pool deck while the handler is swimming since that is deemed not to affect the cleanliness.
Questions that may be asked to determine a service dog?
Service dogs do not have to be registered or wear any particular vest, collar, or other indication of their job, although that may be helpful. There are privacy issues associated with determining whether a service dog is a legitimate service dog and therefore specific guidance on what can be asked to verify if a service dog is truly a service dog.
The following questions are the only questions that can be asked to verify if a service dog is truly a service dog:
Is the dog a service animal required because of a disability?
What work or task has the dog been trained to perform?
A person trying to determine if a service dog is truly a service dog cannot ask anything about the disability itself, including proof of the disability even if it is not obvious what service the dog provides. A party may not ask the handler to demonstrate the tasks or ask for a license or certification. There is no such thing as a certificate or id card for a service dog under the ADA for a service dog, certain states like California, have a license that a handler may get on a voluntary basis but is not required to get that will identify the dog as a service dog.
Can a business deny access to a service dog due to allergies or other issues?
Businesses have to allow access to service dogs that are well behaved. They may have to make adjustments to their business but cannot deny entry. Fear of dogs is not a reason to deny entry. For instance, one woman who described a Taxi driver refusing service due to his fear of dogs. A fear of dogs is not a reason to deny a service dog. Even where certain Health and safety codes prescribe that dogs are not allowed the business may not deny entry to service dogs.
When can a business owner ask that a service dog be removed from the premises?
Service dogs can be asked to be removed from premises if the animal is out of control and the handler is not taking effective action to control the service dog. If a service dog is misbehaving, exuberant or barking the Handler must be taking action to restrain the service dog.
If the handler is unable to control the service dog the business may ask that the dog be removed but cannot ask the handler to be removed as well. The service dog handler must still allow the handler access to the goods and services.
A business or place that improperly denied entry to a service dog may face penalties for denying access. It is best to be certain of your rights as a public place.
Service and Emotional Support Dogs in Housing
The Fair Housing Act obligates housing providers to accommodate service dogs and emotional support dogs in the rental or sale of the dwelling. The Fair Housing Act is broader than the ADA in that it does include emotional support dogs.
HUD Guidance provides:
“[U]nder the Fair Housing Act, housing providers are obligated to permit, as reasonable accommodation, the use of animals that work, provide assistance, or perform tasks that benefit persons with disabilities or provide emotional support to alleviate a symptom of effect of a disability.”
Not only does the Fair Housing Act add the idea of providing emotional support but HUD guidance does not limit accommodations to dogs; they are emotional support animals, including cats and any other type of animal.
Where a landlord does have a no pet policy for rentals, the property Owner or landlord would be required to give accommodation for an emotional support animal and a service animal.
Can service dogs go on planes?
The Air Carriers Act governs access to service animals on flights. In December 2020, the regulations were revised to remove emotional support animals from the category due to significant abuse, even reports of animals that bit flight attendants.
Service animals permitted on planes are dogs that are individually trained to do work or perform tasks for the benefit of a person with a disability.
It is important to note that no additional pet fee is required for service animals to go on planes similar to hotel rooms and service dogs do not need to fit under the seat. The airlines may ask for certain certifications, vaccinations, or others items related to behavior. Including that if a flight is over 8 hours that the pet can go that long without going to the restroom.
No breed or size limitations but service dogs on places must fit at the feet of the other passenger and the airline can require leash or harness. If the service dog is too large to fit at the feet of the passenger the handler may have to buy another seat.
It is also important to note that other countries do not have to allow the same access as a service dog other than for the blind so where you are traveling internationally you will have to check with the country.
There are a lot of considerations when using a service dog. It is important to note what qualifies as a disability and also a service dog. Emotional support dogs which are growing in prevalence are far different from service dogs and have different laws that apply to their access in various places.
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