Classrooms, auditoriums, dining areas, stadiums and other public spaces
The new regulations define service animals as dogs. Although a separate regulation creates analogous obligations for miniature horses, the service animal regulations exclude cats, ferrets, primates and all other species from coverage based on public health considerations.
The first question to ask is whether the animal is a dog; if it is not, it is not a service animal, and unless it qualifies under the miniature horse regulations, the ADA does not obligate you to permit it.
The regulations continue to require that service dogs be individually trained to do work or perform tasks for a person with a disability, and amplify that requirement in two ways. First, the work or task must be directly related to the handler’s disability. Second, the regulation excludes emotional support animals from coverage.
The regulations recognize that service dogs can perform tasks for a person with a psychiatric or mental disability as well as a physical disability and give as examples “preventing or interrupting impulsive or self-destructive behavior.” To distinguish between a service dog and an emotional support dog, do not focus on the handler’s disability. Rather, ask what work the animal is trained to perform for its handler. The DOJ cautions that unless the animal is individually trained to do something that qualifies as work or a task, the animal will be considered a pet or support animal. Service dogs must work without threatening violence.
A dog can perform “nonviolent protection or rescue work” but cannot qualify as a service animal if it provides aggressive protection. Guard dogs are not service animals, and the regulations authorize the removal of service animals that behave aggressively unless actively provoked by another.
Most service-animal determinations should therefore be straightforward. Occasional questions may arise regarding psychiatric service dogs. The DOJ explains that a dog trained to help an individual with dissociative identity disorder “remain grounded in time or space” qualifies as a service dog because it performs work.
“The fact that the animal is trained to respond to the individual’s needs distinguishes it as a service animal. The process must have two steps: recognition and response.
For example, if a service animal senses that a person is about to have a psychiatric episode and it is trained to respond by nudging, barking, or removing the individual to a safe location until the episode subsides, then the animal has indeed performed a task, as opposed to merely sensing an event,” state the rules.
Service dogs must remain under the handler’s control, and must be tethered, harnessed or leashed unless the handler cannot use a tether, harness or leash, or if using one would interfere with the animal’s safe and effective performance of tasks.
The DOJ regulations apply to residence halls but recognize that the Fair Housing Act may also apply to residence halls. The Department of Housing and Urban Development has not issued regulations regarding service animals, and Fair Housing Act cases have come to differing conclusions over whether the FHA requires accommodating emotional support animals.
Perhaps the DOJ analysis of the public health risks associated with species other than dogs may persuade HUD that ferrets, monkeys and cats have no place in residence halls designed to encourage students to socialize in suites and other common areas. But even if they do not, FHA accommodations are limited to residence halls.
Some states have laws that define service animals more broadly and impose greater obligations to accommodate service animals. The DOJ regulations do not prevent states from imposing greater obligations. If a particular state extends coverage to emotional support animals or to species other than dogs, then schools in that state must comply with state law. To view the updated regulations, go to www.ada .gov/regs2010/ADAregs2010.htm.
About the author
Michael R. Masinter is a professor of law at Nova Southeastern University and chair of the legal panel of the ACLU of Florida. He teaches, writes about and litigates disability rights, civil rights and employment law.
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