July 2017

Assistance animals: What you need to know

The use of assistance animals for people with physical or mental disabilities has brought about changes to the Americans with Disabilities Act in 2011, the Fair Housing Act in 2013 and the Air Carrier Act in 2016.

In a recent webinar “Assistance Animals: What You Need to Know,” attorneys Gary Norman, Marcy Lahart and Rebecca Huss explain how challenges to these laws have caused housing providers and airports to accommodate assistance animals and their owners.

Here are four things you should know:

The ADA is limited to service animals. Norman, attorney consultant mediator and co-manager of the Prometheus Group in Baltimore, Md., shares the definition of a service animal under the ADA: “A service [assistance] animal means any dog individually trained to do work or perform tasks for the benefit of a person with a disability,” he says. Under Title II and Title III of the ADA, emotional support animals, comfort animals and therapy dogs are not considered service animals. He adds that “other species of animals, whether wild or domestic, trained or untrained, are not considered service animals, either.”

The Fair Housing Act includes both assistance and emotional support animals. A 2013 notice issued by the Department of Housing and Urban Development clarifies that housing providers must accommodate people with disabilities who rely on assistance animals under the Fair Housing Act. The Fair Housing Act defines an assistance animal as “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” As a results, many housing providers subject to the Fair Housing Act, including colleges and universities, have revised their policies to accommodate assistance animals.

Lahart, attorney-at-law with Florida Animal Lawyer in Gainesville, Fla., shares guidelines for housing providers incorporating assistance animals into their communities. “As a housing provider, you are entitled to ask for proof of the disability if the disability is not obvious,” she says. However, you shouldn’t make unrealistic demands for documentation. “Case law establishes that there doesn’t need to be any sort of magic word or jargon in a letter from a doctor or social worker,” Lahart explains.

The Fair Housing Act also protects assistance animals and their owners from “unreasonable conditions” set by housing providers, including having to carry the animal at all times outside the housing unit (typically an apartment or condominium) and not allowing the animal to relieve itself on the complex’s premises.

Policies on college campuses are evolving. “Colleges are changing their policies to make it clear if students have a right to bring their animal to campus as a service animal under the ADA, and what process they would need to go through if they want to utilize an assistance animal under the FHA in student housing,” says Huss, professor of law and Phyllis and Richard Duesenberg Chair in Law at Valparaiso University School of Law in Indiana. These changes are largely due to a 2013 suit against the University of Nebraska-Kearney, in which two former students were denied reasonable accommodations to keep assistance animals in their university apartments. “The ruling clearly states that college student housing facilities are going to be subject to the FHA,” Huss says.

Kent State University in Ohio found itself the defendant of a September 2014 suit for a Fair Housing Act violation after it ruled that a student suffering panic attacks was not allowed to keep an emotional support dog in her room. The lawsuit claimed students with psychological or emotional disabilities were being treated less favorably than students with physical disabilities. Kent State agreed to pay a settlement to the student as well as adopt a policy on reasonable accommodations for assistance animals.

Airports are making accommodations for assistance animals. Revisions to the Air Carrier Act in 2009 recognize emotional support animals as service animals and allow them to fly with their owners. Norman, who has flown with service animals, believes more airports should have assistance animal relief areas past the screening or security checkpoints.

The Transportation Security Administration’s recommended security guidelines urge airports to have a relief area past the security checkpoints, and the Department of Transportation’s Code of Federal Regulations urges U.S. and foreign air carriers to cooperate with airport operators to provide relief areas for service animals in U.S. airports. But Norman points out that although airport regulations have been updated to ensure airports provide at least one relief area per terminal that is wheelchair accessible, he has noticed a disparity in relief area access in the airports he has visited with a service animal.

Norman stresses that the legal issues surrounding service animals in public spaces are far from over. “This service animal issue continues to evolve and continues to bring real opportunities to have an enhanced conversation about including people with disabilities and their dogs in public and private spaces,” he says.

“Assistance Animals: What You Need to Know” is sponsored by the ABA Center for Professional Development, Commission On Disability Rights, Commission on Law and Aging, Government and Public Sector Lawyers Division, Health Law Section, Section of Administrative Law and Regulatory Practice, Section of Civil Rights and Social Justice, Section of Legal Education and Admissions to the Bar, Section of State and Local Government Law and Tort Trial and Insurance Practice Section.

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