Recently, the Department of Justice issued a guidance entitled, “frequently asked questions about service animals and the ADA,” which can be found here. I thought I would go over and highlight some of the questions discussed in the guidance, especially since service animals v. therapy dogs blog entry of mine consistently ranks as one of everyone’s favorite blog entry. I am not going to go over every question-and-answer in the guidance, but will highlight some of them. By clicking on the link above, the reader can see all of the questions. What I have done here, is list the question that the DOJ asks (for sake of convenience, I have sometimes combined questions are rephrased them without changing the substance), and then I offer my own thoughts.
1. What is a service animal?
DOJ: Under the ADA, 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 tasks performed by the dog must be directly related to the person’s disability.
A) It is absolutely true that a service animal is a dog. However, miniature horses get much the same protection, but they are not referred to in the regulations as a service animal.
B) Interesting the statement that task performed by the dog must be directly related to the person’s disability because…
2. What question can a covered entity’s employees ask to determine if a dog is a service animal?
DOJ: In situations where it is not obvious that the dog is a service animal, staff can only ask two specific questions: 1) is the dog is a service animal required because of a disability? And 2) what work or tasks had the dog been trained to perform? Staff are not allowed to request any documentation for the dog, require that the dog demonstrate a task, or inquire about the nature of the person’s disability. [italics mine]
A) On the one hand, DOJ is saying that a task performed by the dog must be directly related to the person’s disability. On the other hand, DOJ is saying that where it is not obvious that the dog is a service animal, staff is not allowed to inquire about the nature of the person’s disability. What that means is that there is a conclusive presumption that once it is explained what work or task the dog has been trained to perform, it is automatically deemed to be related to that person’s disability.
B) The key with trying to figure out whether an animal is a service dog is determining whether it is engaged in recognition and response. If it is, then it is a service dog. If it is just a matter of providing comfort for a person with a disability, then it is a therapy dog.
C) Service dogs are the only ones protected by the ADA. However, other laws protect therapy dogs, including the Air Carrier Access Act and the Fair Housing Act.
3. Does the ADA require a service animal to be professionally trained?
DOJ: No. People with disabilities have the right to train the dog themselves and are not required to use a professional service dog training program.
My thoughts: Make sense. Training an animal to be a service dog is extraordinarily expensive. Some entities will give the dogs away for free, but most service dog cost an incredible amount of money, which many people can’t afford. Also, depending upon disability and the breed of dog, training a dog to be a service dog may be something that is easily doable. For example, I have a miniature poodle and he has basically trained himself to be a service dog with respect to alerting me to sounds when I am in the house. However, he wouldn’t qualify as a service dog because he is just too exuberant in public:-) I suppose if I had the inclination and the time and he gets older, I might be able to break him of that habit. Even so, it is not necessary in my case because I function entirely as a hearing person in the hearing world and a hearing dog would not be of any benefit to me outside my home (unless I suppose, I was staying in a hotel overnight by myself. Even so, it wouldn’t be necessary if the hotel reasonably accommodates my deafness).
4. Who is responsible for the care and supervision of a service animal?
DOJ: The handler is responsible for caring for and supervising the service animal, which includes toileting, feeding, and grooming and veterinary care. Covered entities are not obligated to supervise or otherwise care for a service animal.
My thoughts: This is all absolutely true. However, covered entities are required to make reasonable accommodations to a handler with a service animal as discussed here.
5. Can hotels assign designated rooms for guests with service animals, out of consideration for other guests?
DOJ: No. A guest with a disability who uses a service animal must be provided the same opportunity to reserve any available room at the hotel as other guests without disabilities. They may not be restricted to “pet friendly” rooms.
My thoughts: Every time I read this, I do my best not to go ballistic. If this argument is true, then a deaf person should have the absolute right to insist on a room in a hotel that a nondisabled person could stay in and insist on portable equipment put in so that a deaf person could access the room. Instead, many hotels segregate all persons with disabilities, including the deaf, into certain rooms. A practice that drives me absolutely batty.
6. Does the ADA require the service animal be certified as service animals?
DOJ: No. Covered entity may not require documentation, such as proof that the animal has been certified, trained, or licensed as a condition for entry.
My thoughts: Requiring certification of service animals from what I can gather happens quite frequently (in fact it is such a common occurrence from what I can gather, that it is not unusual for people with service dogs to carry the certification documentation on them), and is a practice that needs to stop.
7. My city requires me to register my dog as a service animal. Is this legal under the ADA? Can the service animal be any breed of dog and if so, must the municipality adjust if they have an ordinance restricting certain breeds of dogs?
DOJ: Mandatory registration of service animals is not permissible under the ADA. However, service animals are subject to the same licensing and vaccination rules applicable to all dogs.
DOJ: A service animal can be any breed of dog and municipalities, must make an exception if a prohibited breed is a service animal.
My thoughts: Readers may also want to check out this blog entry of mine with respect to these issues.
8. When can service animals be excluded?
DOJ: The service animal can be excluded if including the service animal results in a fundamental alteration to the goods, services, program, or activities provided to the public; overrules legitimate safety requirements; or if a particular service animal is not housebroken or out of control and the handler does not take effective action to control it. The DOJ goes on to explain in a separate question that under control often means the service animal is harnessed, leased, or tethered while in public places unless those devices interfere with the service animal’s work or the person’s disability prevents use of the devices. In that case, voice signals or other effective means to maintain control of the animal are in order. Under control also means that the dog should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quiet place. However, barking once or barking a lot because it has been provoked does not mean that the dog is out of control.
My thoughts: I don’t see why the barking exception needs to be restricted to a quiet place. A service dog should not be repeatedly barking, absent provocation, wherever that service dog is located. Also, when it comes to whether a dog is under control, much of it should be common sense.
9. Are hotel guests allowed to leave their service animals in their hotel room when they leave the hotel?
DOJ: No because the dog must be under the handler’s control at all times.
My thoughts: This makes perfect sense because if the dog is not with the individual, it simply cannot be a service dog. On the other hand, I could see situations where it may not always be necessary for therapy dog to be with the individual. Again, therapy dogs are governed by different rules and laws.
10. Are restaurants, bars and other places serving food or drink required to allow service animal to be seated on chairs or allow the animal to be fed at the table?
My thoughts: True, but restaurants are becoming very dog friendly. Here in Decatur, Georgia for example, it is not unusual to see restaurants with extended patios allow dogs and not just service dogs and therapy dogs, to accompany an owner at their table and even provide or allow water bowls to be at the table.
11. Are churches, temples, synagogues, mosques, and other places of worship required to allow individual to bring their service animals into the facility?
DOJ: no because such organizations are specifically exempt from the ADA.
My thoughts: However, you do want to check your individual State law as it may go beyond the ADA. Also, places of worship may be desirous of doing the right thing and make individual exceptions for people wanting to take advantage of their place of worship.
12. Do commercial airlines, apartments, mobile home parks, and other residential properties have to comply with the ADA?
DOJ: Commercial airlines are subject to the Air Carrier Access Act and apartments, mobile home parks, and other residential properties are subject to the federal Fair Housing Act.
A) The Air Carrier Access Act, which is something I have written about before, is the exclusive remedy where commercial airlines do not properly deal with the rights of persons with disabilities. The Air Carrier Access Act does not contain a right to a private cause of action. True, a person or their lawyer can file a complaint with the Department of Transportation and they can take action or not.
B) The Fair Housing Act is the law that covers apartments, mobile home parks, and other residential properties.
C) Both the Air Carrier Access Act and the Fair Housing Act allow for therapy dogs.
Before leaving this blog entry, keep in mind that this is only a guidance from the Department of Justice and not a final rule. Accordingly, as a result of the discussion we had in this blog entry, courts will have flexibility with respect to how far they want to go in following this guidance.