Service Animals and the ADA: Exploring Common Issues and Scenarios

Service Animals and the ADA: Exploring Common Issues and Scenarios

Tuesday, November 21, 2017

Peter Berg

Thank you very much Robin and greetings and Salutations. I am typically involved with the audio conference I am on the other side of the microphone doing the introductions. Today is a bit of a change but pleased to be here with you talking about service animals. My favorite topics under the ADA and other federal laws. So hopefully through today's presentation I'll be able to answer some of your questions and I also hope that the presentation triggers other questions that you may have and we would encourage you to ask those when we get to that point in the presentation.

So now we are going to go on to slide No. 11 for those of you following along at home and look at the laws that we are going to talk about today. So first and foremost we are going to address the service animals under the Americans with Disabilities Act. We are talking about state and local government facility as well as places of public accommodation. And then also look at the service animal under the ADA from an employment perspective. Taking a look at that for both employees and employers.

We will look at Rehabilitation Act, Section 504 as many of you are aware applies to recipients of federal funding. So state and local governments, colleges, universities all receiving federal dollars, Section 504 applies to those settings. Then we are going to move on to educational settings, talking about the Individuals with Disabilities Education Act IDEA which is of course the federal law that applies to K through 12 public school settings and we will talk about the application in that setting. And we are look at the Fair Housing Act and how it looks differently at service assistance animals and then finally we will wrap up with the air carriers access act by applies to air travel. One thing I want to start off with is to make sure that people are clear that when we talk about these various federal laws, we are talking about the right of people with disabilities to be accompanied by their service or assistance animal. Service or assistant animals don't have rights. They may have protections under state laws that prohibit interference with the work of a service animal or assistance animal and other laws in general that protect animals from being abused but we are look at it this from the perspective it is the person with a disability that has the right to be accompanied by their service or assistance animal and we are going to look at the differences in the laws where they apply and what can be asked when documentation can be required and so forth. So on to slide 12, we are starting off with service animals and the ADA.

Slide No. 13 is a little scenario that I have here. Gary is responsible for the training and his staff at the business where he works the union bowling facility. And he has had some recent incidents with some new hires and issues with people coming in to the bowling alley with service animals and not being treated properly of so he wants to update the businesses training and new employees coming online and this is important. Training in all aspects of ADA is important but especially for those of you out there in the business community or for those of you in state and local government. Training staff is crucial. It is crucial to, you know, properly implementing the ADA to avoid discriminating again someone that uses a service animal. So it is important for your front line staff to have this information. Having administrators and managers have the information is great but in most instances and most settings it is going to be your front line staff thank are coming in first contact with the public and sometimes these are paid staff and other times depending on the facility it could be, you know, volunteers. So it is important that people within your organization they are going to have contact with the public, other requirements of ADA when it comes to service animals.

So the first thing is under the ADA a service animal is an individually trained dog that performs work or a task for someone with a disability. When the Justice Department updated its regulations a number of years ago it limited species to dogs only. So only dogs and we are talking again ADA state and local government and Title III businesses. Dogs only that are individually trained. Individually trained is not mean they have to be professionally trained. And sometimes something that is misunderstood. There are lots of examples where a person trains their own service dog. So, for instance, someone that has difficulty bending and picking up items over time is trained their dog, not a service dog because the dog is trained to pick up items. The person did it themselves. Where someone that has a gait that's a little off. When they walk they have trained their larger dog to walk alongside them and it provides stability for the person when they are walking. And then, of course, you have other types of service animals that are professionally trained that go through specific training programs, guide dogs for persons that are blind go through a lengthy training program because of the work that they do. Other types of -- I'm sorry. I'm on slide 14.

Just finishing up on individually trained. As I said other types of service animals are, you know, professionally trained, trained psychiatric service animals that work with someone with post-traumatic stress disorder. It means that the dog is trained to perform work or a tasks for a person with a disability. It does not have to be professionally trained through some accredited or certified training school.

All right. So I'm on to slide 15. And talking about what is the -- what is work or perform task in relation to the service animal. Slide #15 the service animal is doing something related to the individual's disability. They are working, they are performing a task. An animal that is trained work with someone who is a diabetic is performing a task of notifying the individual when their glucose levels drop or they are very high.

Individuals with psychiatric service animal that has depression, they have a service dog that reminds them when to take medication. They can perhaps lose the sense of time and need to be reminded when to take their medication. And then also an individual that has epilepsy or some other seizure condition can have a service animal that's able to alert the individual that is a sue sure is oncoming and alert the person so that they can get in a safe position and get on the ground so that when the seizure happens they are not in a vulnerable position.

All right. Now on to slide No. 16. Gary's hired some sharp new staff here and they are asking questions and the new staff want to know what questions, you know, can we ask. Can we ask any questions and they see someone come in with a dog. They should assume that it is a service animal and even though the bowling alley has a new pet policy.

And so we go to slide No. 17, permissible inquiries. Many of you are aware of the two questions. There are two questions and two questions only that can be asked under the ADA with regards to a service animal. One is it a service animal that's needed because of a disability. And if the individual answers in the affirmative and says yes, you know, the follow-up question could be what work or task has the animal been trained to perform.

Obviously in instances where the -- what the animal is doing is quite evident. Assisting someone that is using a wheelchair to pull the person in the wheelchair to open up doors or a guide dog that is assisting a someone that is blind. The two questions aren't necessary. It is apparent that the individual has a disability and it is apparent as to the work or task that the individual is performing. Additionally, you know, covered entities that may not ask questions in to the nature of person's disability. Can only ask the first question is it necessary because of a disability and can't require that the animal demonstrate the work or task that it is trained to perform. Going back to the previous slide, hired someone who has epilepsy and has a seizure alert dog to demonstrate the work or task that the animals performs. An entity can't get in to those types of questions.

All right. Slide No. 18 I have moved on to. So a patron enters a branch of Asbury Park library system and Patti who is on duty informs the patron that the library has no pet policy and the patron responds this is my service animal and proceeds to hand Patti the documentation that says this is a certified, you know, training -- trained dog. And the person, you know, won't answer the questions of just simply says it is a service animal and this is my documentation. And then finally Patti mumbles to herself going forward can she require that when they patrons in the future and can they require that the individual demonstrate the providing documentation that the animal is a service animal.

So on slide 19, may the Justice Department covered entities require any type of documentation when a person indicates that they have a service animal. A person who is using a service animal, you know, they must answer the two questions, business and state and local government entity has, you know, can require that the individual answer those two questions. But no documentation. No proof of certification that the animal has been individually trained. This is one of the bigger questions we get around service and assistance animal. Where I do register my service animal. I want to get my animal certified. If you go online and you do a search and you will come across a number of different websites that proclaim that list that they in fact, will register, will certify your service animal, your assistance animal, emotional support animal and you will be able to print out this wonderful documentation and typically charge pore it. Those websites are quite meaningless. The documents don't provide or give convey any rights to a person with a disability. So someone goes in to a business and they produce that documentation it is not nothing in terms of the ADA.

And furthermore, the Justice Department has made clear this type of documentation, type of proof does not recognize these animals as service animals simply because the person has this type of documentation.

So people need to be, you know, aware of this and understand that there is no such thing as a national registry. The Federal Government doesn't have an exam or a checklist that someone can look at and say okay, all these different types of animals all these different types of dogs meet the definition of a service animal. So we are going to issue documentation to that individual. Now, you know, some states may issue, you know, documentation for someone to present to a position -- to a business or to a state or local government entity but in terms of the ADA business covered entity cannot require it and those websites don't convey any rights.

All right. Slide No. 20, Nils is a manager of a local grocery store. And first time shopper came in with a service animal Nils asked the two questions. And was informed that yes, it is a service animal. Assists because of a disability and that yes, that the animal assists him by picking up items when they drops items and assisting in pulling. But there are times that the service animal is off the leash and wandering a couple of aisles away from the shopper. Nils is the manager of the store, is responsible for the operation of the store. And not sure what they can do because he has seen the person with a disability he has seen the service animal pick up items and truly thinks this is a service animal and not sure what he can do. If you look at slide 21, the ADA regulations clearly state that the service animal must be under the control of the handler, the person where a disability at all times. It must be on a leash, a tether or a harness. Or a -- if there is some other way that it is under the handler's control. Where the -- using a leash or tether with individuals is unable to use that or interfere with the work of the service animal, the service animal needs to be under the control of the person through some other means, whether that's hand gestures or voice commands to instruct the service animal. And the service dog that is wandering away from the person with a disability is not working. In order for the service dog to be working it needs to be near the individual ready to perform the work or task that it has been trained to perform for the person.

All right. So on to slide No. 22 and looking at extend this customer is back in the store with the service animal. Nils becomes aware of an incident that just occurred in the store where the service dog was very aggressive towards other shoppers and now Nils needs to address this and speak with the person that is using the service animal that was a service animal was aggressive towards other grocery -- other shoppers.

So on to slide 23, the DOJ regulations have two specific examples where a service animal can be appropriately excluded and one is where the animal is out of control and the handler doesn't take a person with a disability doesn't take appropriate steps to get the dog under control. Out of control doesn't mean a service dog barking once because, you know, while it was laying on the ground near their handler one stepped on its tail and it barked.

That's not an animal out of control. But an animal sha is aggressive towards other patrons or other service dogs or other people in general or is barking, is an animal out of control. Or where the service dog is not house broken. So if the animal is having accidents within the facility, the animal can be excluded. What needs to be clear here is that it is the service dog that is being excluded from the premises and not the person with a disability. So when a business or state or local government if there are these incidents where a service animal can be excluded, it needs to be clear that it is a service animal that's being excluded and not the person with a disability and in some instances that may also result in a person being unable to stay on the premises but it is not the person with a disability being excluded but the service dog because of its particular behavior.

The general requirement for most state and local government and businesses is that service animals be allowed to go wherever the general public is allowed to go within the facility. And this includes the question from time to time on medical settings, hospital settings. And there are a few specific locations within health care facility, a hospital where a service animal could be excluded due to risk, a surgical ward, a burn unit where maybe serious concerns about infection and so forth but in general a person with a service -- a person with a disability using a service animal should be allowed to go where the public is allowed to go. This includes someone who is -- someone who is an inpatient in a hospital. They still require the use of their service dog because again there is someone that is diabetic and the dog can still assert them that they are having a glucose drop or seizure or alert animal or animal that assists a person in getting around the patient room, then the service animal should be allowed to remain with the person. One other example I want to bring up on this is and this is one that we have had from time to time in the past and first responders. Where someone with a disability using the service animal was involved in a situation where emergency personnel need to be -- need to respond to and in some instances take the person to the hospital. What do you do with the service dog in that instance. Justice Department guidance on this, if there is room within the ambulance and the dog and person with a disability can be safely transported then that should be the procedure that takes place. That raises potentially other issue on the other end in an emergency room, again who is taking care of the service animal on that end. But in general for state and local governments that have emergency personnel that are responding to situations, you would have to think that they already have a policy in place I'm sure that there have been instances in the past where someone who is out with a dog walking or driving with a dog or cat in the vehicle and they are involved in an accident and they need to be taken by ambulance to a hospital I would think that there is already some policy, some procedure in place for how do you handle that pet if the pet is not going to be transported with the individual. Making -- trying to make contact with the friends of the person to place the service animal of if that's not possible, animal control taking the animal and securing it until an appropriate time where friends or family of the person can be identified to take the service animal or at a point where the person with a disability can be reunited with their service animal.

All right. Slide No. 24, Becky is again travel, travel season, it is the holiday season. People are going to see family and friend. So Becky she is the travel with their her family and she uses a service animal. And she has reached out and contacted a hotel and wants to make a reservation and in doing so she informs the hotel that she uses a service animal and the person taking the reservation states that is no problem and they are a bet friendly hotel and Becky is going to have to pay a pet deposit and a daily pet fee for her service animal. Becky has traveled before and she has never encountered this type of situation. Should the hoe it will be applying those fee.

Slide 25 the ADA strictly prohibits the placing of surcharges on persons with disabilities. The hotel and other businesses can't charge a pet fee or a pet deposit at the time. If in a rare instance a service animal does cause damage to a hotel room and the hotel generally charges the guest tore those damages, then they can charge the individual that uses a service animal some if a hotel whether it had a guest, a 5-year-old has torn apart the room and there are damages in there and the hotel will generally -- it will charge the guest for those damages. If the service animal makes damages in the room, then the person with a disability can be charged. Now that can't be used to say well, we have to clean the room because it was a service animal in here. Hotels in general hopefully they are vacuuming rooms when a guest checks out and changing the sheets and the covers that were in the hotel room when someone checks out. It is not going to require typically, they should be wiping down all the surfaces in the room, the bathroom, the counters and desks and dressers. Typically they are doing that as part of their normal procedures when someone checks out of the room. We are not having to do a whole lot of additional cleaning when someone checks out. Someone that uses a service animal told that the rental company has a pet deposit or fee that is placed when someone is traveling with an animal. To have that upfront for someone that uses a service animal that's renting a vehicle would be viewed as a surcharge. In general when people bring the rental car back, they are doing that normal cleaning when they put it back on the lot for someone else to rent. So placing that fee on someone would be viewed as a surcharge.

All right. On to slide No. 26. And just miscellaneous provisions, care and supervision of the service animal is the responsibility of the a person with a disabilities. It is not the responsibility of a covered entity. Service animals should be allowed to go wherever the general public is an allowed to go within a facility.

On to slide No. 27, a common question that we still get, are emotional support, therapy, comfort animals service animals under the ADA. And when I answer this question I'm answering it in relation to -- in relation to the ADA. Because, you know, emotional support comfort therapy animals are very valuable to some people with disabilities. They play a very valuable role. When we talk about it in terms of the ADA, they are not service animals because it is the actual presence of the emotional support animal that provides some type of relief or reduction in symptoms for the person with a disability. So when -- I make the distinction in the explanation of the difference between the psychiatric animal and emotional support animal I like to refer to it as R and R. And if you are ever having difficulty sleeping late at night, if you look at the Justice Department regulations in the section by section analysis there is a good section there in that breaks down and explains the distinction. We talked about that it is the presence of the emotional support, the comfort animal that benefits the person with a disability. A trained psychiatric service animal, recognizes that something is happening with a person with a disability and then responds. It is trained to recognize that a loud noise, a crowd, something has triggered a reaction for the person with a disability. The training of the psychiatric service animal, recognizes something happen and it responds. It works to get the person away from whatever has triggered the particular episode. That's the difference. It is that R and R. Recognition and response for training service animal versus the presence of the emotional support or comfort or therapeutic animal.

Slide No. 28, service animals in training from an ADA perspective, look at the definition. Individually trained past tense dog, performs work or task for someone with a disability. So from under the ADA a service animal in training is not a service animal simply by the fact that it is still in training. Many states do have laws of you need to be aware that if you are a person who is training a service animal or a covered entity with responsibilities, many states do have laws that require public accommodations to allow a service animal in training to be accompanied in to the facility. And those are state specific in terms of, you know, what the trainer is required to be in possession of in terms of, you know, do they have to have some type of documentation, certification. Does the animal have to have some sort of identification on it. That's going to be state specific. You want to check with your civil or human rights commission that's in your individual state to determine what those requirements are on a state by state basis.

All right. Slide 29, an exception to the service animal requirements under the ADA is for miniature horses. Miniature horses are not service animals under the ADA. They are a small exception to the service animal requirements.

So going on to slide No. 30, of course, when the Justice Department updated it regulations a few years back there was a lot of play within the press and media. It was, you know, sort of cute that miniature horses were specifically listed in the regulations as an exception. I can tell you that at least, you know, there hasn't been a huge explosion in the use of miniature horses. But it is allowed because certain individuals who for whatever reason may not be able to use a service dog and instead choose to use an individually trained miniature horse. So a miniature horse needs to be individually trained to perform work or tasks for someone with disability and the same with a service dog. It has to be work task performed related to the person's disability. In general the ADA requires state and local governments businesses to look at their rules, their policies and to make modifications where it is reasonable to do so. There are assessment factors that a covered entity can go through and make that determination if it is reasonable to modify that policy.

So slide 31 looking at those assessment factors what does a covered entity need to consider. Looking at the type size, weight of the horse, generally miniature horses we are not talking about ponies. They are miniature horses. Generally 24 to 30 inches tall. So looking at the height, the weight. In relation to the facility type and whether or not it would be appropriate or because of the size, the weight of the miniature horse it wouldn't be reasonable or appropriate to allow the miniature horse in a particular setting. The person with a disability needs to have control of the miniature horse. Just as with the -- with a service dog. And then just as with the service dog the miniature horse must be house broken and then looking at whether the horse is present in a particular facility would pose any type of legitimate safety requirement. All right. Now we are going to move on to service animals and employment.

So on to slide No. 33. And Carol is a supervisor is having a meeting with one of her staff and during that meeting the employee informs Carol that doctor has prescribed a service animal for him.

The employee does not have an apparent disability. So can't see what the service animal may be doing for this employee. And then Carol's unclear, uncertain as to what her employer's responsibilities, what the company's responsibilities are for the employee that the employee indicated he needs to use a service animal. Slide No. 34, just in general the ADA requires covered employers, state and local governments or private employers with 15 or more employees have an obligation to provide reasonable accommodation in three different settings. So one, accommodation is necessary to provide an equal opportunity to participate in the application process. Two, when the accommodation is necessary to allow the employee to be able to perform essential job functions or three when the accommodation is necessary for the employee with a disability to have an equal opportunity to access any benefits associated with employment.

Under the EEOC, the equal employment opportunity commission, there is no definition of a service animal. Under the employment provisions we could be talking about an assistance animal and talking about something that is a species other than a dog. There is no specification, limitation in the employment regulations. Emotional companion assistance animals could be considered a reasonable accommodation under Title I.

So moving on to slide 35, in general when an employer has an employee request a reasonable accommodation and the need for the accommodation or the disability are not apparent, the employer has the right to documentation from the employee. So one limited documentation that establishes that the employee has a disability as defined under the ADA and then, you know, more importantly one are the functional limitations and what is -- and what accommodation may be necessary to allow the employee to perform essential job functions. So the employer in this instance, you know, can't require documentation how of the service animal will assist Bill in being able to perform essential job functions.

Just as with the other portions of the ADA, the employers is not responsible for the care of the service animal. Obviously the responsibility of the employee. They may need to -- a modification in policy in allowing employee to uses a service animal to take additional, shorter breaks to take the animal out. Those are all part of the discussion. One of the scenarios that we have had come through our technical assistance lines in the situation where an employee with a disability now has a service animal in the workplace and, you know, another employee comes and says that they have allergies and they are allergic to dogs or fearful of dogs, but in the case of the -- if an employee comes forward to expresses they have an allergy to dogs and now there is a service dog in the workplace and the employer should respond to that as a reasonable request for accommodation and have the dialogue with the employee. Warranted getting documentation to determine whether or not the employee with the allergies, if this raise to the level of meeting the definition of a disability under the ADA and if so, the employer has the need to accommodate that employee as well and looking at what can be done to accommodate that employee while still accommodating the employee that requires the use of their service animal.

All right. Slide No. 36, Bill is heading home on one of his nightly commutes on the local transit system and bus and he notices a passenger get on the vehicle with a cat. And he notices that there is an exchange between the bus driver and the passenger. The passenger answers the bus drivers questions and goes and has a seat with the cat. And Bill is under the understanding that we just talked about, only the definition of service animals under the ADA limits species to dogs only. Where is the disconnect here.

And so we look on to now slide No. 37, the Federal Transit Administration has enforcement responsibility for transportation providers. This is both public transit agencies under Title II as well as private transit agencies under Title III of the ADA. We have a different federal enforcement agency that has its own regulations that implement the ADA with regards to transit providers subject to the ADA. The Department of Transportation's definition of service animal did not change as a result of the Justice Department's updating of its regulations. The Department of Transportation if they were going to make changes and at this point there have been no indications but there would be a public notice and just like with any federal agency that is updating regulations they are required to go through a public comment period. So they would make notice to the public that they are planning to update their regulations and then we would post their proposed regulations and give public a chance to comment on those.

So at this point slide 38 this is the definition of a service animal under the Department of Transportation regulations. So it is any guide dog, signal dog or any other animal individually trained to perform -- to guide individuals with blurred vision, alerting individuals with impaired hearing, providing minimal protection or rescue work, pulling a wheelchair or fetching dropped items. So that definition as you see is much more -- is much broader than -- broader than the Justice Department definition. So it is important to understand that even though we are talk -- we are still talking about the ADA but we have two different agencies that have enforcement responsibilities for different covered entities under the ADA and they have different definitions of a service animal. So you need to understand the setting and understand which regulations apply to the particular setting.

On slide 39 service animals in places of education. IDEA Individuals with Disabilities Education Act is typically -- when it talks about access to, you know, to academic services within the school. Sometimes including a service animal as part of an IEP. Can be a way to provide protections for the student. But it is not always -- it is not necessary. Because they are public schools in addition to having obligations under IDEA they also have obligations under Title II of the ADA which we just talked about. And if you go on the Justice Department's website or Google Justice Department service animal settlement agreements with public schools you will find a number of fairly recent settlement agreements. There is one from back in February of this year involving a school district in Michigan where the parents requested that their son with a disability, a seizure condition be allowed to have a trained service animal within the school and after six months of going back and forth and recording documentation from the parents for the family the family finally filed a complaint in the U.S. attorney's office for the Eastern portion of Michigan and came back and resolved that with the settlement. The school said you in general you are limited to asking those two questions in a school setting. Service animal is there because of a disability or task have been trained to perform. There are other cases going back in 2014, school district in New Jersey and there is even a settlement agreement in 2013 with a private school. So under Title III. With a boarding school. So the student with a disability parents had asked that the student be allowed to have their service animal with them in the school setting and then included dormitory setting. And in school again dragged its feet and requesting reams and reams of documentation that it didn't have the right to request and DOJ resolved that going back in to the two questions that they are allowed to ask. Post-secondary setting, I know we are talking colleges and universities. Title II or Title III and in both instances we are talking about Section 504 of the Rehabilitation Act. I can't think of an example where a college doesn't receive federal funding. And also we also have the Fair Housing Act which applies to, you know, housing that is provided by the college or the university.

All right. So slide 40 first day of class at Clarence Clemons community college and freshman Jake arrives on campus with a service animal and security personnel inform Jake of the college's no pet policy. When Jake informs them that it is a service animal, they direct him to the office of disability services where they say he needs to go and register so he can have the service animal on campus. Post-secondary institutions, again limited to those two questions with regards to the student with a disability. And so those two questions again is that a service animal necessary because of a disability and what work or task has the animal been trained to perform. If it is a housing situation and assistance animal the documentation the college or university can require and we are going to get in to that in a little bit. But a college or university to be clear cannot require a student who uses a service animal to register with disability services. If the student doesn't need academic adjustments they are using a service doing on the campus the college university cannot require the student to register with student services.

On to the next slide, slide 42, now it is the first day of classes at Asbury park college and Eddy is on campus and security tells Eddy we have no pet policy and Eddy informs this is my service animal and they say we have this registry that's operated out of the office of student services.

So on to slide No. 43. Animal registry, they are permissible as long as they are voluntary. So as long as the Asbury park college has a voluntary registry, but it is a voluntary registry that is permissible and it is permissible for state and local government entities as well. Sometimes those can be valuable for emergency preparedness situations where emergency responders have information that the person has and uses a service animal. There are also other instances where, you know, a state or a county or a municipality may provide a reduced fee for licensing of a dog. The service dog. So where there is a benefit they can certainly have that volunteer registry but it needs to be voluntary and it needs to be clear. The state of Michigan has a voluntary registry program for service animals and individuals with disabilities that register their service dog with the state are given some identification which is great. Again it is voluntary. In a lot of instances it means that the person is not going to be stopped and asked two questions but again when you have those types of situations, you know, whoever is operating that volunteer registry needs to be clear that businesses and other entities within the state can't require that the person showed that identification because it is again only a voluntary registry. It in a post-secondary situation it makes a lot of sense. For the students saying we got a big campus and lots of buildings and our staff are trained, they ask the question and you may be going in to a different building and seeing different staff from a day-to-day basis. We have this voluntary registry and we give you this identification and we enter the buildings and you are not going to be asked those question but the biggest thing it needs to be voluntary in nature.

On to slide No. 44, Susie arrives on campus for sophomore year and she is going to be living on campus and she has an owe emotional support and didn't inform the college that she would be returning with the ESA. We are going to look at that because we are now transitioning out of ADA out of 50 #4r and in to the federal Fair Housing Act.

So on to slide 46. The Fair Housing Act applies to landlords, associations, both condo minute numb associations, homeowners associations, other housing providers and that would include a college or university is providing housing as part of their educational facility. It provides protections for applicants with disabilities. All right. I'm on slide No. 46, apologize for that. So provides protections for housing applicants with disabilities and residents with disabilities and also provides protections on the basis of association. So someone is discriminated against because they have a child with a disability or a spouse with a disability and they face discrimination in housing setting. They are -- they have protections.

Slide No. 47. All right. So Max has found apartment in a neighborhood in Atlantic City. And Max is using a service animal and his wife uses an emotional support animal and they inform the housing property manager this information and it has only one pet building and all other buildings are no pets. And in the pet building there is restrictions in terms of breed and size of animal.

Slide No. 48, the Fair Housing Act requires covered housing providers to make accommodations to their no pet policies when the accommodation is necessary to allow a resident to be accompanied by a service or an assistance animal. And so that in addition to the modification of no pet policy, a housing provider may not place breed or size limits on a service or assistance animal. It clearly prohibits the housing provider even if they have that in place under their pet policy where they have pets when it comes to a service or assistance animal. It can't apply those restrictions to the resident that uses the service or assistance animal.

All right. On to slide 49, so Max after contacting his regional ADA center now understands that the housing providers have an obligation to make accommodations to no pet policies. And he had a conversation with the housing provider and the housing provider says fine you can move in to one of other buildings with your service animal and your wife can move in with her emotional support animal but I'm going to require documentation from you and you have to pay a pet deposit and also pay a monthly pet fee.

So slide 50, when the -- the housing provider should always start out asking the first questions under the ADA. An animal that is a service animal under the ADA is always going to be a service animal under the fair housing. That's where the housing provider should start. In instances where it is a -- it is a species other than a dog or it is a -- it is an assistance animal or emotional support animal, a housing provider may require documentation from the resident indicating one that they have a disability as defined under the Fair Housing Act, which is the same definition that's used under the ADA and two there is disability related need for the service or assistance animal. In order for the resident to have the full opportunity to enjoy the housing that's being provided they require the use of disability related need for that service or assistance animal.

And furthermore, that FHA prohibits placing any pet fees or pet deposits on a resident that uses a service or assistance animal. Before going on, before we move in to the Fair Housing Act and educational setting. Again college or university where they have a -- someone that's move in to a dorm and they have a service animal, it is a service animal under the ADA and it is going to be a service animal under the Fair Housing Act. Where we have a service animal that's a species other than a dog or have assistance or emotional support animal, in that instance again the college and university can require that same documentation, that the student has a disability and again that the -- that there is a disability related need for the -- for the animal. In those situations where it is a service animal species other than a dog where it is assistance animal, the student, resident has the right to be accompanied by that service assistance animal. You know, wherever students are allowed to go within that residential setting. The student wouldn't have the right to take them assistance emotional support animal on to the other locations on the campus that were solely subject to the Americans with Disabilities Act.

All right. So on to slide No. 51 and coming down to the final stretch here of looking at the various federal laws. Air Carrier Access Act prohibits discrimination on basis of disability by airlines. The Air Carrier Access Act applied to all domestic air carriers and applies to foreign airlines that fly in to or out of the United States.

Slide No. 52, so under the Air Carrier Access Act the definition of service animal includes guide dogs, signal dogs, psychiatric service animal, service animals, emotional support and what the act requires is that the -- a person that an is traveling with a service animal has the right to be accompanied in the cabin with their service animal. Similar to the other laws we talked about we can't place additional charge, they can't charge you that fee when you traveling with a service animal.

Slide 53, now here is where we get a little bit of a to thinking of remember ADA, two questions, no documentation. And then we move on to Fair Housing Act and certain situations where yes, documentation can be required. Air Carrier Access Act depending on the type of service animal an airline can require very specific documentation. So airline staff can verify the need for the service animal that the service animal related to the person with a disability. Airlines can require they said very specific documentation to verify a need for a psychiatric service animal or an emotional support animal. It is important that persons with disabilities that are traveling and want to travel with their service animal that they contact their airline well in advance to find out what the airline requires in terms of documentation related to a psychiatric or emotional support animal.

So if we move on to slide 54, these are the very specific items that an airline may require for someone traveling with that psychiatric service animal or emotional support animal. Documentation can be not older than one year and on the letterhead of a licensed mental health professional and has to indicate that an individual has a mental or emotional disability. Indicate that the animal is going to be necessary during air travel or when the individual gets to final destination. Indicate that the health professional that's writing the letter is treating the person for the condition. And finally it does not have to list the specific diagnosis of the individual. But as you see an airline can require very detailed documentation. Important for someone who is traveling that they contact their airline. So identification, how does the airline determine that it is a service animal and they should allow the passengers to be accompanied if they -- if the animals is wearing harness tags. Some other type of identification indicating that it is a service animal. If the passenger provides some type of, you know, information that they received from a training school and talking about documentation that is printed off the Internet. If the individual provides a credible assurance that in fact, this is a service animal that they need for air travel or need when they get to their final destination. On to slide 56, personnel can make additional inquiry if they are uncertain as to whether or not this is a service animal being used by a passenger with a disability. Can ask what work, what task the animal has been trained to perform and ask the person to describe how the animal performs that work or task.

On to slide No. 57, unusual animals may be permitted. So we are talking about miniature horses, pigs, monkey may be allowed to travel as service animals. When making a determination as to whether or not an unusual animal can be accommodated they can certainly look at the size, weight of the service animal and take in to consideration the size of the aircraft, is this animal going to actually be able to fit that's in the aircraft. And if there are restrictions on the type of animal at the final destination, someone is traveling out of country and that particular animal is not allowed in that country, the airline does not have to transport the animal.

Slide 58, the Air Carrier Access Act has a list of other species that are not considered service animals. So that includes snakes, reptiles, ferrets, spiders, rodents. Any animal can be denied boarding if they pose a safety or sub pick health concerns.

Slide 59, foreign air carriers obligations for foreign air carriers is to recognize only dogs as service animals. So they don't have to allow unusual animals to transport. And not required to transport psychiatric or emotional support animals.

Slide 60, service animals can be denied for boarding. If the animal is out of control, barking jumping, misbehaving, using ADA terminology the animal is out of control and the person can take appropriate steps. The animal poses a direct threat to health and safety of others or where the animal poses a significant risk of upsetting disruption of service could be because of the size of the animal.

61 slide 61 just like with the other laws the service animal can't be denied transport because other passengers allergies or affairs of services animals, if there is a passenger that has a severe allergy that rises to the level of meeting the definition of a disability, the airline would have obligations to accommodate that passenger as well. Potentially having to rebook one of the passengers but then they have the obligation to accommodate both passengers.

On to slide 62 I am going to go through quickly and make sure we save time for questions. Preboarding, passenger with a disabilities was traveling with a service animal and should be given the opportunity to preboard. They should be allowed to, you know, request any seat as long as the service dog does not block aisle or block an emergency exit row. And if the individual, you know, is in a seat where they are blocking an aisle or an emergency they should be given an opportunity to have a seat elsewhere within that same class of service. Slide 63, they don't -- airlines are not required to ask other passengers to give up their foot space in order to accommodate a service animal. They can certainly check to see if there would be a passenger willing to do this. If the person is willing, reseat the person and travelling with a service animal to a location where the space is better and there may be more foot room to accommodate larger service animal.

And they could, you know, the airline could choose to upgrade someone and put them in an upgraded section. Not required to. But they could. Where there is going to be more space, more foot space to accommodate the service animal.

Slide 64, the inflight services that which food, snacks, don't have -- don't have to be made available to a service animal. And, of course, carriers is not required to -- not responsible for the care and supervision of the service animal.

Slide 65 service animal relief areas, air carriers must provide -- must provide animal relief areas within the terminal and if necessary provide assistance, you know, escorting guiding the person, the passenger with a disability to that animal relief area. And relief areas must be within security areas. Persons not having to go out and back through -- through security at multiple times.

So just to wrap up here, this last scenario on slide 66 before we get to the questions. So John he is leaving on a jet plane. His bags are all packed. It is early dawn and the taxi is outside blowing his horn of his apartment building. So John is considering he has made contact with his -- with his airline to find out what he needs to provide in terms of documentation so that he can travel. Because he is traveling with emotional support cat and he is ready to go and decided to take a public transportation, taxi whatever, but once he gets to his final destination the hotel, the hotel has to allow his emotional support cat. And as we see in our next slide confused, you understand why there is confusion amongst people with disabilities, individuals that use service assistance emotional support companion animals as well as the entities that are subject to those vary laws, fair housing, Section 504, Air Carrier Access Act because if that scenario John would have the right living in residential housing apartment complex to have his emotional support cat under the Fair Housing Act. Under the Department of Transportation regulations and definitions of a service animal, you know, if was emotional support. It was a service cat that alerted John to take medications, then that would -- that would be met the definition under the DOT regulations. And then traveling with his trained service cat on an airline is airlines are required to allow that because of the Air Carrier Access Act and now John gets to final destination staying in a paradise setting and gets to his hotel and says no, only service animals allowed are dogs. Lots of different. intricacies out there. Slide 68 and we are ready for questions.


Thank you Peter.

Lots of information and probably created more as you said from your previous slide confusion for some people as has been represented by some of the questions that people have submitted. So I'm going to ask you to start address this issue of conflicting disabilities. And how that is addressed. So there are knew numerous questions that have been submitted by individuals who identify that they have severe allergies to the point where their allergies are a medical condition and they have a significant anaphylactic responses. But whether it is life threatening types of responses for someone who is exposed to let's say dander or whatever. How does one an entity address that type of issue and does one person's rights trump another person's rights.

Peter Berg

I will talk about it in a couple of different settings because it is going to vary. So let's take the example of a student. So we are talking about ADA Section 504, you know, public or private university covered by the ADA. Student that uses a service animal is in a classroom and also a student as you described Robin someone with significant allergies to the point where it becomes life threatening. In that instance you look at the regulation, the regulations specifically require state and local governments and places of public accommodation which would include a private college or university to allow a person with a disability to be accompanied by a service animal where of the general public is allowed to go. So that's very clear and I heard this from folks at the Department of Education Office of Civil Rights that that person with the student service animal has the right to be in the classroom. The other student, it doesn't mean that the opportunity doesn't have any rights or college or university doesn't have any obligations, that's not the case. College or university if this is a student that indicates they have a disability and they need a modification they can't be in a classroom with a service dog, they can provide that the student provide documentation indicating that they are a person with disability and the functional limitations and in that instance the -- unfortunately for the student with the allergies it may mean they need to take a different class. Because the college -- yes, has an obligation to accommodate or make modifications for the student based on their covered disability but the regulations for Title II and Title III are clear that the student with a disability has the right to be in that classroom. And then the college or university would need to look at some other way to accommodate that student. And whether that -- it was a big enough space within a large lecture hall where they could have that student with a service animal in one area and that the student with the significant allergies be in another area as accommodation or is may necessitate a student with a significant allergies being in a different course or a different class. And then employment settings gave that example, again in that situation the employer has an obligation to accommodate any employee with a disability that requires the accommodation in order to be able to perform the job or access benefits associated with the job and benefits that include, you know, bathrooms that provided for employee use, break rooms, vending machines. So in that situation if you have an employee that requires the use of a service animal, the service animal is necessary for the individual can perform essential job functions, and then you have another employee with again using the example of the significant allergies the employer has an obligation to accommodate both of those employees. Remember that the employment provisions do not require an employer to necessarily provide the specific accommodation that the employer requests. The employer must provide an effective accommodation.

That may necessitate keeping these employees separated as best as possible, looking at air quality and could be done for the employee that has significant allergies and restricting the individual coming in contact with the animal dander and jo so forth. But in is the obligation to -- both individuals meet the definition of disability there is an obligation for the employer to accommodate both employees if necessary. And then just real quickly with the Air Carrier Access Act it is the same scenario. The airlines if there is a passenger traveling with a service animal and there is another employee who has allergies that rise to a level of a disability the airline in that instance has the obligation to accommodate, you know, both of those individuals. And come up -- and come up with -- one of the bullet points on the slide it may necessitate rebooking a passenger. They may need to rebook the passenger traveling with the service animal or the individual that has the significant allergies. And then also would be another -- we will go back to another question. You could have the scenario in a dormitory setting. And, you know, where you have a roommate or you have someone on the floor that could be allergic. Have allergies that rise to the level. If they have both persons with disabilities the college or university needs to look at their responsibilities to make accommodations or modifications for both students.


Thank you. Very complicated issue. The one of the comments made around by people who have obviously experienced what they are calling in their comments and things a fake service animals or service animals that are coming in in vests and things of that nature but clearly their behavior. Can you reiterate again what are the options for an entity what is their obligation and options when there is a harness in place and things and related to service animal and what constitutes a legal or legitimate service animal?

Peter Berg

Sure. This is a question that we get frequently from private businesses. I had a police officer that called here last Friday who was not -- who was not happy when they told him that, you know, the business that police officer is limited to two questions. It is unfortunate. There are persons out there that know those two questions, that business can ask. Is it a service animal necessary because of a disability and what work or task has the animal been trained to perform. People without disabilities know the drill and the questions. Unfortunately they don't want to be away from their pet or dog when they go in to Starbucks to get their coffee. It is unfortunate because in some instances that makes it more difficult for people with disabilities who need or require the use of their service animals and that in order to be able to interact with their community and go in to businesses. You know, dog wearing a vest doesn't mean it is a service animal. Someone shows you paperwork it doesn't mean it is a service animal. Covered entity or covered government, don't think it is a service animal you don't have to let it in. There can be risks with that. We see from time to time where the news where the business or restaurant is denied a veteran that uses a service animal in to the facility and it becomes a public -- a nightmare for the covered entity.

But again there are those instances where a service animal can be appropriately excluded. And it is -- if an animal, don't think it is a service animal because of the way it is behaving, even if it is a service animal you can appropriately exclude it. A trained service animal is just that. It is trained. It is at the side of the person with a disability. Because it is working. Or when it is not working and it is sitting and it is underneath a chair or a desk or under a table, out of the way. This is obviously, you know, as I said a big issue. But as we know the ADA service animals of people sometimes portray it as the most ghastly law enacted. There are lots of laws and regulations and rules that people do not follow. I can guarantee in each and every one of the locales where you are hearing the sound of my voice or reading the captioning within the webinar room there is someone who is going faster than the speed limit and it happens and they are not being caught. There are people that don't pay their taxes. You see a way to get around and they are unfortunately going to take advantage of it. And I guess that from the Justice Department and from a Civil Rights perspective they think that, you know, that's more important to protect the rights of people with disabilities that legitimately use and need the use of service animals. There are several states that do have state statutes that make it illegal and punishable for someone to falsely identify their pet as a service animal. The state of Florida has something and state of Michigan. How that is enforced or the means by which someone reports someone, you know, each' not exactly clear on how that happens. The argument that you hear from businesses often is they should have to get some document action or proof and there is -- that entity as I talked to earlier that evaluates and says okay you told me it is a service animal and need because of a disability and this is a work or task that is performed and I am going to evaluate it against this checklist and here is your certified or verified documentation. And one of the reasons is that 25, 35, 40 years ago when you talked about a service animal people are thinking about a guide dog, assisting someone that was blind or had low vision. There are service animals that do so many different things for people with all different types of disabilities that that's one of the main reasons why you don't have some type of national registry or certification. And the great thing about the expansion and use of service animals it has allowed persons with different types of disability to go out and interact with the community and previous things they were not able to do that because their service dog was not recognized.


I'm going move on. Can you just for a second talk about some of the areas that service animals would not be required? Or have been addressed as not being appropriate? So, for example, am I required to allow somebody to put their service animal in the shopping cart. Things of that nature. Could you address that?

Peter Berg

Shopping cart is designed for food and small children. No general speaking a store would not have to allow to place a service animal in to a shopping cart. The service animal needs to be in contact with the individual in on the ground performing its work or task. We have had questions before from restaurants and where someone has walked with a dog in a pouch on their vest and the person indicates this is my service animal and that performs this for me. There is certain examples where because of the disability and the dog is trained to notice the odor of the person's breath and make indication whether assisting someone as diabetic or a seizure condition. There is an instance where the individual may appropriately need to have the service animal with a pouch on its chest. No requirement to have it in cart. No requirement to allow service animals in to swimming pools if they are local rules, regulations that prohibit service animals in swimming pools, not required to allow those. Those are two specific questions that are addressed in the Department of Justice document. It is a really good resource.


Address the issue of just quickly if an entity like a university or a business or whatever, would require the dog to meet the local codes and standards for rabies and things of that nature, if they would have to provide the documentation.

Peter Berg

If all animals are within the jurisdiction county, city are required to be vaccinated and have licenses then a service animal is required to have that same type of information. To the college and university I understand where those questions coming from, in a dormitory setting is it legitimate? I would think if the local jurisdiction says that the dog has to have a valid up to date vaccination tag on a collar I would think that should be enough for the college or university. If the dog is wearing that. At the r requiring reams of documentation and understanding people living amongst each other. But college or university, charged with enforcing local ordinances requiring vaccinations and so forth and I understand the setting. If someone is walking across the campus someone from the community and service dog or are they checking when that service dog comes on to their property in to the auditorium for a speech or they are go in to one of their arenas to attend a college football or basketball game I guarantee this not checking to make sure that the dog has the appropriate tag on it. I would be careful and I would start with determining whether or not the animal has appropriate up to date licensed tag on it. If they want to take the number and verify with the county or whoever issued it, I think that had would be fine to do.


Can you please just clarify, I think you have created some confusion for folks related to the Department of Transportation regulations and your use of the example and cat and things of that nature. If you can quickly clarify that the emotional support animal and service animal issue under transportation with the Department of Transportation rules versus arc access to a building or facility under the ADA.

Peter Berg

Sure. The important thing to understand between the Justice Department and the department of transportation's definition there is no species restriction under the Department of Transportation definition of a service animal. So it is still has to be a service animal but it is not limited to dogs only as a Justice Department to which would apply the state and local government facilities, programs, private businesses and so forth versus the Department of Transportation which is going to apply to your public transit agencies and private transit providers. Emotional support contained and still not a service animal under Department of Transportation but it can be something other than a dog. Sorry for the confusion there.