This is the second blog post in our new series on Assistance Animals, Service Animals, and Emotional Support Animals. See the first post here. Stay tuned in the coming weeks for blog posts addressing unique questions and issues for employers and places of public accommodation.
Thirty thousand years ago, dogs began living in the camps of hunting and gathering peoples. From the start, dogs appear to have filled a variety of roles as hunters, watchdogs, and guardians. More recently, animals are proving to be very beneficial to individuals with disabilities by helping them address a variety of health conditions.
In the last few years, college students have expressed interest in bringing their Service Animals, Emotion Support Animals (ESAs), or Assistance Animals to school to help them manage one or more physical and mental health issues. While most educational institutions have policies and procedures regarding animals on campus, institutions should be prepared to handle complex and unique requests. Recent requests involving some particularly exotic emotional support animals—including a beehive, a baby kangaroo, and a large peacock—may not be common or standard, but they highlight that institutions need to be aware of the legal backdrop related to animals supporting students’ health.
Question: How do Service Animals, Emotional Support Animals, and Assistance Animals Differ?
Service Animals (ADA)
Under the Americans with Disabilities Act (ADA), “Service Animals” are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Any dog breed can be a Service Animal. But Service Animals are working animals, not pets. Other species of animals, whether wild or domestic, trained, or untrained, are not service animals for the purposes of the ADA (but may be under applicable state or local laws).
While some Service Animals may wear a vest, ID tag, or specific harness, the ADA does not require these items. The ADA also does not require documentation—such as proof that the Service Animal has been certified, trained, or licensed as a Service Animal—as a condition for entry into a facility.
Emotional Support Animals (FHA)
Unlike Service Animals, ESAs are not individually trained to do work or perform tasks and are not regulated by the ADA. Instead, ESAs perform tasks, assist, or provide emotional support for an individual with a disability. A student can claim any animal as an ESA (except animals that are unlawful to possess under federal or state law).
To qualify under the limited protection afforded to ESAs under the Fair Housing Act (FHA) (which arguably applies to residences owned by colleges and universities), an ESA must be accompanied by a letter from a licensed health care professional with personal knowledge of the individual (sometimes referred to as an “ESA letter”) confirming the individual has a disability affecting a major life activity and stating the individual’s need for an ESA for therapeutic purposes.
Assistance Animals (FHA)
Under the FHA, there are two types of Assistance Animals: (1) Service Animals, and (2) other trained or untrained animals that perform tasks, assist, or provide therapeutic emotional support for individuals with disabilities (sometimes referred to as “Support Animals”). Under the FHA, a disability is a physical or mental impairment that substantially limits one or more major life activities.
Like Service Animals under the ADA, Assistance Animals are not “pets,” but generally, they are limited to animals that are commonly kept in the household.
Question: What accommodations must education institutions provide for individuals with Service Animals?
Answer: Education institutions must modify or alter their policies, practices, and procedures to allow individuals with disabilities—students and employees—to use Service Animals. Generally, education institutions must allow Service Animals to accompany individuals with disabilities in all areas of the facilities where the public can go, even in places that do not allow pets.
But there are some exceptions to this general rule. Individuals with disabilities can be asked to remove their Service Animals from the premises under certain circumstances:
- The dog is out of control and the handler does not take effective action to control it.
- The dog is not housebroken.
- The dog poses a “direct threat” to the health or safety of others by demonstrating dangerous behavior, having a history of such behavior, or not being under the handler’s control.
- Allowing the Service Animal on the premises would require a fundamental alteration to the nature of the goods, services, programs, or activities of the institution.
Question: How should an education institution handle requests for a Service Animal or ESA on campus?
Answer: Education institutions should handle requests to use a Service Animal, ESA, or Assistance Animal in accordance with the institution’s policy for reasonable accommodations under the ADA. But institutions should be careful when conducting follow-up questions. Designated institution employees can ask only two questions:
- Is the dog a Service Animal required because of a disability?
- What work or task has the dog been trained to perform?
Generally, the institution should not ask about the nature or extent of the person’s disability or ask for documentation that the dog is registered, licensed, or certified as a Service Animal.
Question: Are education institutions required to accommodate Assistance Animals under the FHA?
Answer: Yes, if the education institution provides housing for students. The FHA requires housing providers to make reasonable accommodations involving Assistance Animals.
A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces.
Note: While it is not necessary to submit a written request or to use the words “reasonable accommodation,” “assistance animal,” or any other special words to request a reasonable accommodation under the FHA, students or faculty members making a request are encouraged to do so to avoid miscommunication.
In evaluating requests to bring Assistance Animals into covered housing, which arguably includes residences owned by colleges and universities, institutions should use general reasonable accommodation principles and make a determination promptly. Institutions may request information regarding a student's disability and disability-related need for the animal, including supporting documentation (e.g., an ESA letter).
Guidance from U.S. Department of Housing and Urban Development (HUD) provides that where an ESA is a unique animal that is not commonly kept in households (i.e., a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes), the requestor has a “substantial burden of demonstrating a disability-related therapeutic need for the specific animal or specific type of animal.” According to HUD, reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.
Importantly, under the FHA, education institutions are generally not required to allow ESAs in any other space on campus beyond the students’ or faculty member’s own housing.
If a reasonable accommodation request is denied because it would impose a fundamental alteration to the nature of the institution’s operations or impose an undue financial and administrative burden, the institution should engage in the interactive process to discuss whether an alternative accommodation may be effective in meeting the individual’s disability-related needs.
Question: How should colleges and universities handle Assistance Animal documentation obtained from the Internet?
Answer: Some websites sell certificates, registrations, and licensing documents for Assistance Animals to anyone who answers certain questions or participates in a short interview and pays a fee. Under the FHA, a college or university may request reliable documentation when an individual requesting a reasonable accommodation has a disability and disability-related need for an accommodation that are not obvious or otherwise known.
According to HUD, such documentation from the Internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an Assistance Animal.
On the other hand, many legitimate, licensed health care professionals deliver services remotely, including online (e.g., ZoomCare). Generally, one reliable form of documentation is a note from a person’s health care professional that confirms a person’s disability and/or need for an animal when the provider has personal knowledge of the individual.
Question: Can a college or university ever assess a fee related to an Assistance Animal?
Answer: It depends. An education institution may not charge a deposit, fee, or surcharge for an Assistance Animal. An education institution, however, may charge a tenant for damage an Assistance Animal causes if it is the education institution’s usual practice to charge for damage caused by tenants (or deduct it from the standard security deposits imposed on all tenants).
Question: What steps should colleges and universities take to mitigate legal risks in this area?
Answer: To mitigate legal risks, education institutions should consider implementing a policy that expressly allows Service Animals on campus and clearly outlines the following key points:
- The responsibilities and obligations owners and handlers have for their Service Animals, including the responsibility to cover expenses incurred due to the animal beyond routine maintenance or cleaning fees.
- The institution’s sole discretion for allowing ESAs as a reasonable accommodation in on-campus housing to students or faculty with disabilities, so long as there is prior notice and approval. (The institution generally is not required to allow ESAs anywhere else on campus, unless required by state or local law, ordinance, or regulation.)
- The process to assess other accommodations for students and faculty who use ESAs.
- The procedure through which individuals with disabilities can notify the institution of their needs for accommodations and how they can apply for permission to have a Service Animal, ESA, or Assistance Animal accompany them on campus.
Education institutions should also become acquainted with any state or local laws, regulations, or ordinances that apply to education institutions that prohibit the fraudulent misrepresentation of a dog as a Service Animal and highlight those laws in the institutions policies.
If your college or university has any additional questions or needs guidance on crafting policies and procedures to comply with federal, state, and local laws, regulations, and ordinances, please contact the author of this blog post or any other member of Miller Nash’s Education Team.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.