Ask Fred – Service Animals.

Ask Fred.

After many requests, we are bringing back the “Ask Fred” section of the Newsletter to address the many questions we receive from our clients, customers and friends.

”What do we do about owners and tenants who have service animals or emotional support animals?”

 

Service Animals.

Definition

A service animal is any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals.

The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to:

  • Assisting individuals who are blind or have low vision with navigation and other tasks.
  • Alerting individuals who are deaf or hard of hearing to the presence of people or sounds.
  • Providing non-violent protection or rescue work.
  • Pulling a wheelchair.
  • Assisting an individual during a seizure.
  • Alerting individuals to the presence of allergens.
  • Retrieving items such as medicine or the telephone.
  • Providing physical support and assistance with balance and stability to individuals with mobility disabilities.
  • Helping individuals with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship are not considered work or tasks under the definition of a service animal.

When and Where a Service Animal is Allowed Access

Individuals with disabilities can bring their service animals into all areas of public facilities and private businesses where members of the public, program participants, clients, customers, patrons, or invitees are allowed. A service animal can be excluded from a facility if its presence interferes with legitimate safety requirements of the facility (e.g., from a surgery or burn unit in a hospital in which a sterile field is required).

A public entity or a private business may ask an individual with a disability to remove a service animal if the animal is not housebroken or is out of control and the individual is not able to control it. A service animal must have a harness, leash or other tether, unless the handler is unable to use a tether because of a disability or the use of a tether would interfere with the service animal’s ability to safely perform its work or tasks. In these cases, the service animal must be under the handler’s control through voice commands, hand signals, or other effective means. If a service animal is excluded, the individual with a disability must still be offered the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.

Asking Questions

To determine if an animal is a service animal, a public entity or a private business may ask two questions:

  • Is this animal required because of a disability?
  • What work or task has this animal been trained to perform?

These questions may not be asked if the need for the service animal is obvious (e.g., the dog is guiding an individual who is blind or is pulling a person’s wheelchair). A public entity or private business may not ask about the nature or extent of an individual’s disability or require documentation, such as proof that the animal has been certified, trained or licensed as a service animal, or require the animal to wear an identifying vest.

Miniature Horses

A public entity or private business must allow a person with a disability to bring a miniature horse on the premises as long as it has been individually trained to do work or perform tasks for the benefit of the individual with a disability. However, an organization can consider whether the facility can accommodate the miniature based on the horse’s type, size, and weight. The rules that apply to service dogs also apply to miniature horses.

Other Provisions

  • A public entity or private business is not responsible for the care and supervision of a service animal.
  • A public entity or private business cannot ask nor require an individual with a disability to pay a surcharge or deposit, even if people accompanied by pets are required to pay such fees.
  • If a public entity or private business normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

Emotional Support Animals.

Section I: Reasonable Accommodations for Assistance Animals under the Fair Housing Act and Section 504

The FH Act and the U.S. Department of Housing and Urban Development’s (HUD)
implementing regulations prohibit discrimination because of disability and apply regardless of
the presence of Federal financial assistance. Section 504 and HUD’s Section 504 regulations
apply a similar prohibition on disability discrimination to all recipients of financial assistance
from HUD. The reasonable accommodation provisions of both laws must be considered in
situations where persons with disabilities use (or seek to use) assistance animals in housing
where the provider forbids residents from having pets or otherwise imposes restrictions or
conditions relating to pets and other animals.

An assistance animal is not a pet. It is an animal that works, provides assistance, or performs
tasks for the benefit of a person with a disability, or provides emotional support that alleviates
one or more identified symptoms or effects of a person’s disability. Assistance animals perform
many disability-related functions, including but not limited to, guiding individuals who are blind
or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing
protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to
impending seizures, or providing emotional support to persons with disabilities who have a
disability-related need for such support. For purposes of reasonable accommodation requests,
neither the FH Act nor Section 504 requires an assistance animal to be individually trained or
certified. While dogs are the most common type of assistance animal, other animals can also be
assistance animals.

Housing providers are to evaluate a request for a reasonable accommodation to possess an
assistance animal in a dwelling using the general principles applicable to all reasonable
accommodation requests. After receiving such a request, the housing provider must consider the
following:

(1) Does the person seeking to use and live with the animal have a disability — i.e., a
physical or mental impairment that substantially limits one or more major life
activities?

(2) Does the person making the request have a disability-related need for an assistance
animal? In other words, does the animal work, provide assistance, perform tasks or
services for the benefit of a person with a disability, or provide emotional support that
alleviates one or more of the identified symptoms or effects of a person’s existing
disability?

If the answer to question (1) or (2) is “no,” then the FH Act and Section 504 do not require a
modification to a provider’s “no pets” policy, and the reasonable accommodation request may be
denied.

Where the answers to questions (1) and (2) are “yes,” the FH Act and Section 504 require the housing provider to modify or provide an exception to a “no pets” rule or policy to permit a
person with a disability to live with and use an assistance animal(s) in all areas of the premises
where persons are normally allowed to go, unless doing so would impose an undue financial and
administrative burden or would fundamentally alter the nature of the housing provider’s services.

The request may also be denied if: (1) the specific assistance animal in question poses a direct
threat to the health or safety of others that cannot be reduced or eliminated by another reasonable
accommodation, or (2) the specific assistance animal in question would cause substantial
physical damage to the property of others that cannot be reduced or eliminated by another
reasonable accommodation. Breed, size, and weight limitations may not be applied to an
assistance animal. A determination that an assistance animal poses a direct threat of harm to
others or would cause substantial physical damage to the property of others must be based on an
individualized assessment that relies on objective evidence about the specific animal’s actual
conduct — not on mere speculation or fear about the types of harm or damage an animal may
cause and not on evidence about harm or damage that other animals have caused. Conditions
and restrictions that housing providers apply to pets may not be applied to assistance animals.

For example, while housing providers may require applicants or residents to pay a pet deposit,

Housing providers may not require applicants and residents to pay a deposit for an assistance animal. A housing provider may not deny a reasonable accommodation request because he or she is uncertain whether or not the person seeking the accommodation has a disability or a disability-related need for an assistance animal.

Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal. If the disability is readily apparent or known, but the disability-related need for the assistance animal is not, the housing provider may ask the individual to provide documentation of the disability-related need for an assistance animal. For example, the housing provider may ask persons who are seeking a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support.

However, a housing provider may not ask a tenant or applicant to provide documentation
showing the disability or disability-related need for an assistance animal if the disability or
disability-related need is readily apparent or already known to the provider. For example,
persons who are blind or have low vision may not be asked to provide documentation of their
disability or their disability-related need for a guide dog. A housing provider also may not ask
an applicant or tenant to provide access to medical records or medical providers or provide
detailed or extensive information or documentation of a person’s physical or mental
impairments. Like all reasonable accommodation requests, the determination of whether a
person has a disability-related need for an assistance animal involves an individualized
assessment. A request for a reasonable accommodation may not be unreasonably denied, or
conditioned on payment of a fee or deposit or other terms and conditions applied to applicants or
residents with pets, and a response may not be unreasonably delayed. Persons with disabilities
who believe a request for a reasonable accommodation has been improperly denied may file a
complaint with HUD.

Reasonable accommodations under the FH Act and Section 504 apply to tenants and applicants with disabilities, family members with disabilities, and other persons with disabilities associated with tenants and applicants.

Assistance animals are sometimes referred to as “service animals,” “assistive animals,” “support animals,” or “therapy animals.”

We hope this helps. Let us know if we may be of additional assistance by emailing fred.gray@graysystems.com.

 

Fred & Suzanne Gray and all of the Staff at Gray Systems, Inc.

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