Animals - A Legal Overview of Service, Therapy & Companion

Amy Maes, J.D.DNOMre:con 2018

OverviewIn this session, I will cover the legal status of Animals under:• Americans with Disabilities Act as it relates to Employment

Public Services and Activities, Private Businesses and Travel;• Section 504 of the Rehabilitation Act as it relates to Public

Schools, K-12, & Post-Secondary Educational settings;• Fair Housing Amendments Act and Air Carrier Act – how these

laws define service animal;• Michigan Law – Summary of relevant sections of the laws

governing legal treatment of animals, service, therapy, companion;

• A brief summary of select cases dating from 1981 to 2017

In a Relationship with Animals –Its Complicated

Companion Loud & Whiny

Affection Intimidating

Playful Toileting Habits

Loyal Filthy & Stinky

Cool Sheds

Protection Expensive

Social Unpredictable

Warm & Fuzzy Sometimes Slimy

What’s In A Name?• Service • Guide • Therapy • Hearing • Signal/Seizure Alert• Assistance • Emotional Support • Psychiatric Service• Companion • Cancer-Sniffing

What are Companion / Emotional Support and Therapy Animals?Companion/Emotional Support:• People with disabilities

receive some benefit from animal absent specific training. Paired with an individual with a disability who has a disability and who benefits from the presence of the animal.

• Tenuous legal status, because it is conceptually, hard, if not impossible, to differentiate their function from the role of pet.

Therapy animals • Provide people with

therapeutic contact, usually in a clinical setting, to improve their physical, social, emotional and/or cognitive functioning.• Examples include: Hospital

or Nursing Care Setting

Overview of ADA -• Americans with Disabilities Act (ADA) is a Civil Rights Act with

5 titles, Employment, Public Services, Public Accommodations, Telecommunications & Miscellaneous;• Each Title has an Administrative agency tasked with

implementing the mandates of the ADA: • Equal Employment Opportunity Commission – Title I• Department of Justice – Title II and III• Department of Transportation - Title II Public Transportation

• Federal Railroad & Transportation Administration

• Federal Communications Commission – Title IV

Employment• ADA Title I EEOC 29 CFR 1630

•EEOC Regulations related to Title I of the ADA specifically state “other animal”; No definition of service animal –may not be limited to dogs; •Employers not required to allow animals in the workplace

•Handled as a reasonable accommodation request• Unless doing so imposes an undue hardship, significant difficulty or expense, significant disruption of the business, or a change to the basic nature of the business • Unless animal is a direct threat to health or safety

• Emotional support animals may be considered • Employer may ask for documentation of disability and need for animal in relation to essential job functions

Public Services and Places of Public Accommodation

• The Department of Justice regulations state “a service animal means 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.” Department of Justice regulations also provided for an exception, allowing miniature horses.• Tasks performed can include, among other things:

• pulling a wheelchair• retrieving dropped items• alerting a person to a sound• reminding a person to take medication• pressing an elevator button.

What is a “service animal”?• “Any dog, individually trained to do work or perform task(s)

for the benefit of the individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”o Task(s) performed is directly related to the individual’s disability.o Emotional support animals (ESA) comfort animal, therapy dogs

are not service animals. o Other species of animals, whether wild or domestic, trained or

untrained, are not considered service animals!

Title II & Title III of the ADA Dogs & Horses

• Under Title II and III of the ADA, service animals are limited to dogs & miniature horses are allowed as well. • Entities must make reasonable modifications in policies to allow

individuals with disabilities to use miniature horses if they have been individually trained to do work or perform tasks for individuals with disabilities.

Types of Dogs Serving People with Disabilities:Dog Guide, or Seeing Eye® Dogs,

•Hearing, or Signal Dogs, •Mobility assistance Dogs – can pick up things, •Social Signal Dogs S-Sig Dogs - work with individuals with Autism, developmental disability•Alert / Response Dogs – seizure disorder, low blood sugar – sense the aura •Psychiatric Service Animals – are individually trained to mitigate the manifestations of a psychiatric impairment - PTSD (triggers)

Miniature Horses• Under Title II and III of ADA, there is one exception to the

“Only Dogs” rule, Miniature horses that have been individually trained to do work or perform task(s) for an individual with disability.

• Miniature Horses (range in height from 24 inches to 34 inches (not measured in hands) measured to the shoulders and generally weigh between 70 and 100 pounds.)

What to Consider with a Horse• Entities covered by the ADA must modify their policies to

permit miniature horses where reasonable. The regulations set out a four assessment factors to assist entities in determining whether miniature horses can be accommodated in their facility.

• The assessment factors are (1) whether the miniature horse is housebroken; (2) whether the miniature horse is under the owner’s control; (3) whether the facility can accommodate the miniature horse’s type, size, and weight; and (4) whether the miniature horse’s presence will not compromise legitimate safety requirements necessary for safe operation of the facility.

Why Horses?• Less people are allergic to Horses• Better for larger individuals for purposes of pulling or pushing

or stability• Average service life of a dog is 5 years and for a Horse, 27

service life years!

How do I know it is a Service Animal? • Permitted to Ask …

•Is this animal required because of a disability? Or •Is it a service dog? •What task has the animal been trained to assist someone?

• Not permitted to Ask …•Cannot ask anything to elicit information specific to the individual’s disability.•What is the nature or extent of your disability?•Are you on your medications?•Could you show me the animal’s certification? •Would you show me how the dog helps you?•We are going to require you use our service animal badge while in the facility, is that ok?

Not a Service Animal Title II & III

• Emotional support animals, comfort animals, and therapy dogs are not service animals under Title II and Title III of the ADA, under the Department of Justice regulations. • Other species of animals, whether wild or domestic, trained or

untrained, are not considered service animals either. • The work or tasks performed by a service animal must be directly

related to the individual’s disability. • It does not matter if a person has a note from a doctor that states

that the person has a disability and needs to have the animal for emotional support. A doctor’s letter does not turn an animal into a service animal.

• A dog undergoing training to be a service dog – not protected under ADA but may be protected by a state law or ordinance. (Michigan provides protection for service dog/horse in training).

• Personal Protection, security guard dog or a police dog – not protected under ADA.

Transportation• U.S. Dept of Transportation –Federal Transit Administration

and Federal Railroad Administration• “Service animal means any guide dog, signal dog, or other animal

individually trained to work or perform tasks for 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.”

The Air Carrier Access Act & Service Animals?• Service animals and emotional support animals allowed• Air carriers should accept identifiers including credible verbal assurance that a person with a disability is using animal as service animal or emotional support animal• May ask the ‘”the questions”

•Is this animal required because of a disability? Or •Is it a service dog? And•What task has the animal been trained to assist someone?

Service Animals, Air Travel & the TSA• Additional guidelines under TSA, best to familiarize yourself

with the most updated guidelines.

The Rehabilitation Act & Service Animals?Prohibits discrimination based on disability•Obliges federal agencies•Obliges federal contractors and grantees•Directs federal agencies to promulgate regulations•Requires reasonable modifications of policies and practices

Education – ADA & §504

• Permits students with a disability to be accompanied by a service animal in K-12;

• Postsecondary schools must allow persons with disabilities to bring service animals to all areas that are open to the public or students, including dorms; (reasonable modifications -http://www.justice.gov/opa/pr/justice-department-sues-gateschili-central-school-district-violating-service-animal)

The Fair Housing Act - Housing• Does not distinguish between service dogs and emotional

support animals• HUD has interpreted reasonable accommodations

requirement to allow companion animals for people with disabilities and seniors.

Handler’sRights & ResponsibilityHandler’s of dogs, horses must:• Obtain Access -All areas where members of the public, participants

in services, programs or activities, or invitees, clients, customers, patrons, or invitees, as relevant, are allowed;

• Have Control - Have harness, leash, or other tether. Be under voice control, signal or other means when handler is unable because of a disability to use tether, or the tether’s use would interfere with the animal's safe, effective performance;

• Right not to have Surcharges or Fees related to their Service Animal: •Don’t ask for or require unless do so for all. Service animal is not a pet, so no pet fees. •Can charge for damage caused by the animal •Care and supervision: Responsibility of the individual or handler, not the public accommodation or government entity

Faking it …Media hype around this trend!

Or is it…pet industry boom, pets as accessories, pets for convenience (cost of transporting). Can purchase vests and ESA certification on-line!

Service Animals & Local Breed Bans?• Local governmental entities may have banned certain breeds,

fighting dog breeds, pit bulls, Rottweiler’s; animals with increased risks of aggression; however, the federal government has elected not to screen by breed!

Quarantine & Service Animals• Hawaii case• Allows for prescreened guide and service dogs to avoid

quarantine so long as they have ID chips, health certificate, and current documented rabies shots;

Service Animals & Michigan LawDoes Michigan require my service animal to be registered, certified or licensed? No. Mandatory registration of service animals is not permissible under the ADA. Michigan has a voluntary identification card and patch available for a service animal upon request through the Michigan Department of Civil Rights.

• Michigan Compiled Laws Annotated, 287.291 . License fees; exemption for service animals

Michigan Compiled Laws Annotated 750.502c• Service animals; duties of public accommodation; removal or

exclusion; control by handler; inquires and documentation; prohibited conduct; violation; penalties (Misdemeanor/$500 fine)

Other Relevant Michigan LawsMichigan Penal Code.• 750.50a – Assault, Injury and/or Interfere, Impede –

Misdemeanor ($500).

• 752.52 – Vehicle Owner - liable for any injury to a pedestrian who is blind and using a crosswalk regardless of whether service animal/cane were present.

• 752.62 – False Representation (Misdemeanor ($500)

• 752.64 – Hotline for False Representation

Case law related to Service Animals• Bronk v Ineichen (1995)• Woodside Village v Hertzmark (1993)• Whittier Terrace Associates v Hampshire (1981)• Fry v. Napoleon Community Schools (2017 ) • Dilorenzo v. Costco Wholesale Corp. (2007)• Grill v Costco (2004)• “Jane Roe” v. Providence Health System (2009)• Storms v. Fred Meyer Stores, Inc. (2005)• Walmart v Rose (2008)• Thompson v Dover Downs (2005)

Etiquette & Service Animals • Assume you do not have a right, permission to interact with the

animal so as not to interfere with the tasks and training at hand.• Ask politely and be prepared to told “No”.

• Common Sense:•Pay attention to the handler or trainer •Do not pet the animal •Do not distract the animal •Do not feed the animal •Treat handlers with respect and dignity •Talk to the handler first •Do not stare or take pictures •Do not approach with another animal

• http://www.littlethings.com/proper-service-dog-etiquette/

Questions?• Contact Information:

• Amy Maes amaes@dnom.org