Snakes on a Plane, in an Apartment, or at the Supermarket? Assistance Animals Under Three Federal Statutes

Snakes on a Plane, in an Apartment, or at the Supermarket? Assistance Animals Under Three Federal Statutes

October 10, 2023
Snakes on a Plane, in an Apartment, or at the Supermarket?
Assistance Animals Under Three Federal Statutes
People with disabilities commonly request permission to be
registration, and public education facilities, among other
accompanied by an assistance animal at a range of
things. ADA’s Title I extends similar protections in the
locations, from airplanes to supermarkets to apartment
employment context.
buildings. The legal requirements that apply to these
requests can vary by animal species, disability, and business
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
environment. This In Focus reviews the federal disability
§ 794, requires accommodations in federal and federally
laws governing assistance animals, as contained in three
funded programs and activities, applying rules similar to
federal statutes and their regulations.
those in the ADA. The Affordable Care Act, 42 U.S.C.
§ 18116, through cross-reference to the Rehabilitation Act,
Statutory Overview
applies disability protections to many health care providers.
A variety of federal and state laws govern service animals.
As a practical matter, many health care providers and
This In Focus concentrates on provisions applicable to
federally funded entities are also public accommodations
businesses, found in three federal statutes: the Americans
falling under the ADA. The Congressional Accountability
with Disabilities Act (ADA), 42 U.S.C. §§ 12101–12213;
Act, 2 U.S.C. § 1302(a), applies ADA and Rehabilitation
the Air Carrier Access Act (ACAA), 49 U.S.C. § 41705;
Act standards to the legislative branch. The Individuals
and the Fair Housing Act (FHA), 42 U.S.C. §§ 3601–3631.
with Disabilities Education Act, 20 U.S.C. §§ 1400–1482,
Title III of the ADA requires reasonable modifications to
governs special education programs.
policies, practices, and procedures to allow people with
disabilities access to “public accommodations,” that is,
In addition, some state laws contain more expansive rules
businesses and nonprofits open to the public. 42 U.S.C.
for accommodating assistance animals, including
§ 12181. Most businesses, large and small, fall under the
protections for people without disabilities who seek
ADA (though most religious facilities are exempted).
accommodations for service animals in training.
Aside from the ADA, separate statutes govern disability
Animals Protected Under the ADA and ACAA
access with respect to two specific types of businesses. The
The ADA and ACAA regulations require entities to
ACAA regulates airline service. The ADA does not cover
accommodate only one type of assistance animal: a service
air carriers, although it may govern other aspects of airport
animal. 14 C.F.R. § 382.3; 28 C.F.R. §§ 36.104, 36.302(c).
access. The FHA regulates both commercial and
ADA regulations, established by the Department of Justice,
noncommercial housing providers—property owners,
define a service animal as one that has been trained to do
housing managers, homeowner and condominium
work or perform tasks related to an individual’s disability.
associations, insurers, real estate agents, housing
Only two species of animals qualify for ADA regulatory
authorities, and colleges and universities, as well as others.
protection: dogs and miniature horses. (Miniature horses are
While the FHA covers the housing those entities provide,
included to accommodate dog allergies.) ACAA
the ADA may cover other parts of the businesses, such as
regulations, administered by the Department of
leasing offices, open to the public.
Transportation (DOT), require accommodations only for
trained dogs. For example, a dog may lead a blind person
The ADA, ACAA, and FHA each require a business or
around obstacles, alert someone with epilepsy about an
nonprofit to make the reasonable modifications that a
oncoming seizure, or retrieve dropped objects for a
person with a disability needs to have equal opportunity to
wheelchair user. A dog need not be professionally trained to
enjoy and use its services. Under these statutes, a disability
qualify; it may be trained by its owner.
is a physical or mental impairment that substantially limits
one or more major life activities. Modifications can include
Some untrained animals may act as support, comfort, or
exceptions to a no-animal or no-pet policy for an assistance
companion animals. These animals provide assistance just
animal, though the statutes differ as to which animals they
by being with a person and may assist with such disabilities
protect.
as anxiety, depression, or post-traumatic stress disorder.
Many creatures have featured in support animal
Other Laws
accommodation requests, including dogs, horses, alligators,
Several other laws, not further discussed here, may be
ducks, marmosets, snakes, parrots, and rats. In particular,
relevant to some assistance animal requests. The ADA’s
requests for certain animals to board aircraft, including a
Title II applies requirements like those in Title III to state
squirrel, pig, peacock, and boa constrictor, have garnered
and local government services, programs, and activities,
media attention. These support animals, however, are not
whether conducted by governments or their contractors.
eligible for ADA protection under existing regulations,
Title II covers local parks, police services, voter
regardless of species. In 2020, in part because of
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Snakes on a Plane, in an Apartment, or at the Supermarket? Assistance Animals Under Three Federal Statutes
“disruptions caused by requests to transport unusual species
Animals Protected Under the Fair Housing Act
of animals onboard aircraft,” DOT changed ACAA
Compared to the ADA and ACAA, the FHA, as applied
regulations to allow only trained dogs. (As discussed below,
through regulations and agency guidance, provides more
the FHA protects many support animals.) Support animals
protection for people with disabilities living with assistance
are distinct from trained animals providing psychiatric
animals. Reasonable modifications in housing required
assistance. The ADA and ACAA could protect a dog
under the FHA generally include allowing residents to keep
trained to sense anxiety attacks and take specific action, for
assistance animals, including untrained support animals,
example.
even if a provider has a no-pet policy. A housing provider
may ask about an animal’s function and request verification
What should an ADA- or ACAA-covered business do if
to the same extent it requires tenants to authenticate other
asked to accommodate a service animal? When the animal’s
representations in lease agreements. Staff may also ask for
function is not obvious, agency guidance provides that staff
reliable documentation that the resident has a disability and
may ask (1) if it is a service animal needed because of a
needs an assistance animal, if the need is not obvious.
disability, and (2) what tasks it has been trained to do. 28
C.F.R. § 36.302(c)(6). Guidance specifies that staff should
A housing provider may also consider the species. The
not ask about the nature of a person’s disability or for
Department of Housing and Urban Development (HUD)
documentation, although airlines may require DOT forms
specifies in FHA guidance that requests for animals
verifying a service dog’s health, behavior, and training. If a
commonly kept in households, such as cats, dogs, fish,
patron does not have a disability, or if the animal is not
small birds, or rodents, are generally reasonable. The
trained to assist with that disability, these disability laws
agency does not include reptiles (other than turtles),
would not apply.
barnyard animals, and other nondomesticated animals as
common household animals. A resident who asks to keep
Staff may not charge extra fees for service animals, but
an animal not commonly kept in a household, such as a
covered businesses or government services also need not
snake or miniature pony, has, in HUD’s view, the
provide care or supervision for the animals. An animal’s
substantial burden of proving a disability-related need or
handler must care for, clean up after, and control the
other unique circumstances. One example might be
animal. The animal’s handler must use a harness, leash, or
allergies preventing use of a dog or plans to keep the animal
other tether, unless this would interfere with the animal’s
outside. As an example of unusual circumstances, HUD
performance of its tasks. If a leash or harness cannot be
describes a capuchin monkey trained to perform such tasks
used, the handler must control the animal with voice
as opening cabinets and switching on lights. According to
commands, signals, or other effective means. 28 C.F.R. §
HUD, complaints of denied assistance animals are
36.302(c)(4) (animals on planes must be leashed or
increasing and are one of the most common types of fair
tethered). If the handler fails to control the animal, or if it is
housing complaints.
not housebroken, staff may exclude it. 28 C.F.R. §
36.302(c)(2).
As in the ACAA and ADA, if an animal poses a direct
threat to health or safety or is an undue burden on the
Covered businesses and nonprofits need only accommodate
housing provider, it need not be accommodated. A housing
service animals if reasonable, and this will depend on the
provider is never responsible for the animal’s care. While
circumstances. For example, it may be reasonable to allow
the provider may not charge a fee for an assistance animal,
a service animal in many health care facilities, but not
it may charge a tenant for any damage.
reasonable to allow it in an operating room. Agency
guidance recommends that staff permit service animals in
Considerations for Congress
areas customers are allowed to go, including, for example,
When legislating in this area, Congress may consider
self-serve foodservice areas, doctor’s offices, and other
whether to amend the multiple statutes regulating assistance
sanitary environments. Staff generally may not require
animal requests. Because protections for assistance animals
people with service animals to use separate facilities.
arise in regulations, Congress may choose, instead of
enacting statutory specifications, to direct relevant agencies
Even if allowing a service animal would be reasonable for
to adopt particular regulations. Congress could weigh the
most businesses, a facility may deny the accommodation if
need for uniformity versus context-specific rules. It could
it shows that, under the circumstances, the animal poses a
set requirements for certain business settings, certain types
direct threat to health or safety, would impose an undue
of animals, or for particular disabilities. Statutory
hardship, or would fundamentally alter the nature of the
protections might be tailored to service animals, such as
business or service. For example, a zoo may exclude
protections for service animals in training, separate rules for
service dogs from areas where dogs would disrupt the
untrained support animals, or accreditation or registration
animals on display. An airline must permit travelers to carry
for assistance animals. Provisions in the FAA
service animals on their laps, if it can be done safely, but
Reauthorization Act of 2023, S.1939, 118th Cong. (2023),
need not upgrade passengers to first-class service to make
and H.R. 4049, 118th Cong. (2023), for example, would
room for the animals. The duty to accommodate does not
require the FAA to set up a pilot program to exempt
overrule legitimate health and safety requirements.
registered “known service animal users” from air travel
Swimming pools, then, need not permit dogs in the water.
documentation requirements.
Additionally, the business may exclude an animal if its
behavior or history show it to be unsafe.
April J. Anderson, Legislative Attorney
IF12507
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Snakes on a Plane, in an Apartment, or at the Supermarket? Assistance Animals Under Three Federal Statutes

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