Service Animals & the Americans with Disabilities Act (ADA)

1. Service Animals & the Americans with Disabilities Act (ADA) Presenters: Sherri L. Rita, J.D. - Northwest ADA Center David Barton - Access Alaska, Inc.

2. (800) 949-4232 (V/TTY) This number will automatically route your call to the center in your region. Website:www.dbtacnorthwest.org

3. Technical Assistance about implementation of ADA • Education & Training • Materials Dissemination • Information & Referral • Public Awareness • Local Capacity Building

4. Region 10 - Affiliates • Partners in Washington, Alaska, Idaho & Oregon • In each state, experts provide information about ADA compliance Northwest ADA Information Center Mountlake Terrace, WA ADA Partners Project Anchorage, AK ADA Info-Oregon (LILA) Eugene, OR Americans with Disabilities Act Task Force Boise, ID

5. EQUALITY OF OPPORTUNITY "The Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency." -The Americans with Disabilities Act

6. Civil Rights legislation passed in July 26th, 1990 Prohibits discrimination against qualified individuals with disabilities Language is derived from earlier civil rights law and Rehab. Act of 1973 Title I Employment Title II State & Local Governments Title III Public Accommodations Title IV Telecommunications Title V Misc. legal and procedural laws Americans with Disabilities Act

7. The Definition of Disability, what the dictionary says: A disadvantage or deficiency, especially a physical or mental impairment that prevents or restricts normal achievement.

8. Under the ADA, what is the definition of disability? • The ADA definition of disability is not the same definition as is used by the Veterans Administration, Social Security or Workers’ Compensation. • The ADA definition of disability is the one used in the Rehabilitation Act of 1973, Section 504.

9. Three prongs of the definition of disability under the ADA: • Person with a physical or mental impairment that substantially limits one or more major life activity • Person with a record of such a physical or mental impairment • Person who is regarded as having such an impairment

10. Employers must make reasonable accommodations to known physical or mental limitations of a qualified applicant or employee with a disability unless the employer can demonstrate that the accommodation would be an undue hardship. The ADA requires that state & local government entities and businesses allow people with disabilities to bring their service animals onto the premises in whatever areas customers are generally allowed. What does the ADA require in regard to service animals?

11. What is a service animal under the ADA?Federal Register - September 15, 2010 • The rule defines "service animal" as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. • The rule states that other animals, whether wild or domestic, do not qualify as service animals , including a physical, sensory, psychiatric, intellectual, or other mental disability. • These animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government.

12. What is a service animal under the ADA? • Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals. • The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA.

13. Miniature Horses Assessment factors. • (i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features; • (ii) Whether the handler has sufficient control of the miniature horse; • (iii) Whether the miniature horse is housebroken; and • (iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation. The rule permits the use of trained miniature horses as alternatives to dogs, subject to certain limitations.

14. Training of Service Animals • Not currently regulated by Federal agencies • Certification of trainers • Certification of animals themselves • Currently, there is no agreement within the service animal community about what minimum standards should be required. • A number of states have programs to certify service animals, but a private entity cannot insist on proof of State certification (ADA). • 21 States do secure the rights for access for animals in training

15. Alaska Service Animal Laws • AS 11.76.133. Interference with the Training of a Service Animal • AS 11.76.130. Interference with Rights of Physically or Mentally Challenged Person • ADA provides broader protections, however, some states have gone beyond the ADA.

16. Service-Dog-In-Training (SDIT) • It is up to the handler (and in some cases the trainer) as to when a dog graduates from the in-training designation to full-fledged SD. • Most training organizations evaluate the success of each dog’s training relative to a pre-established training standard. • Identify clear training goals so that you will know when your dog has met them and in good conscience, graduate your dog from SDIT to SD.

17. Behavior • Service Animals should be under the control of their handler (leash or carrier) • Service Animals are trained to behave well in public • Should be clean & free of flees, ticks or other pests

18. Americans with Disabilities Act Intent of ADA is not to put you in the role of policing legitimate claims of disability or function, but merely to ensure goods & services are properly accessible to people with disabilities.

19. What do service animals do? Service animals perform some of the tasks that the individual with a disability cannot perform for him or herself.

20. Service animals exist for many disabling conditions. • Guide Animals - visual • Hearing Animals - hearing • Mobility Animals - physical impairment/limitations • Medical Alert Animals – mental illness, seizure or diabetic condition • Psychiatric Service Animals – mental illness (major depression, panic attacks)

21. Carrying/Retrieving items Pulling wheelchairs Opening doors Alerting handler of sounds (phone, doorbell, crying infant, alarms, etc...) Alert handler of onset of seizure or symptoms of mental illness Contact EMS in emergency Guiding people with vision impairments Provide stability for mobility & stamina issues items Household tasks – laundry Stand guard/get help Operate light switches/elevator buttons Functions Service Animals Perform

22. Health Benefits • Service dogs help people overcome the limitations of their disabilities and the barriers in their environments. • In 1995, a 2-year study by Dr. Karen Allen, et. al., found that people with disabilities who had service dogs scored higher for psychological well-being, self-esteem, community integration, and the amount of control they could exert over their environment. In addition, the number of personal assistant (human) hours required for care decreased by an average of 78%. This represents significant potential savings in health care costs.

23. Health Benefits cont… Other studies support the findings of improved self-esteem, independence, and social acceptance. Additional research has documented benefits of companionanimals: • Lowered blood pressure. • Moderation of stress. • Improved motivation. • Decreased serum cholesterol. • Mitigation of the effects of loneliness.

24. ADA Factoid A service animal is not a pet. Not all service dogs will look alike. Many breeds of virtually any type or size of dog is most common service animal you’ll see.

25. Making a determination of service animal status • Some, but not all, service animals wear special collars or harnesses. • Some, but not all, are licensed or certified and have identification papers. • You may ask the person who has the animal if it is a service animal required because of a disability. • Documentation of a disability generally may not be required as a condition for providing service to a customer with a service animal. Minimal inquiry is best; this acknowledges privacy issues. • Although a number of states have programs to certify service animals, you may not insist on proof of state certification before permitting the service animal to accompany the person with the disability. • There is nothing under federal law that requires that a service animal be obvious in its service capacity.

26. Three Steps to help in determination

27. Step #1: Obtain credible verbal assurances ASK- “Is this your pet?” ”What tasks or functions does your animal perform for you?” “What has it been trained to do for you?” Does the response constitute “credible verbal assurance?” Note: Animal need not necessarily perform the function during interactions.

28. Step #2: Look for physical indicators on the animal • Some wear harnesses, vests, capes, or backpacks. Usually marked. • Remember - absence of such equipment does not necessarily mean the animal is not a service animal. There are no uniform requirements for equipment.

29. Step #3: Observe behavior of animal • Trained to behave in public settings. Should remain at handlers feet. Should not run around freely, bark or growl repeatedly, bite or jump on people, or urinate or defecate. • An animal that engages in such disruptive behavior shows that it has not been trained to function as a service animal, even if it performs an assistive function.

30. Exclusion of Service Animal A public entity may ask an individual with a disability to remove a service animal from the premises if… • The animal is out of control and the animal's handler does not take effective action to control it; or • The animal is not housebroken.

31. Employment & Service Animals • It is the responsibility of the employer to provide a reasonable accommodation unless it would be an undue hardship. • Undue hardshipis defined as an action requiring significant difficulty or expense; one that is extensive, substantial, disruptive or that would fundamentally alter the nature of the employment.

32. Nature and cost of the accommodation Availability of tax credits, deductions or outside funding Overall size of the business in relation to the number of employees Impact on the ability of other employees to perform duties Generally, the nature and cost of the accommodation in relation to the employer’s operations and resources Factors to consider:

33. ADA Fact When the need for an accommodation is not obvious, an employer may require documentation only of the confirmation of the disability and the need for the accommodation.

34. Service Animal in an Employment Setting Doctor’s letter should contain the following elements: • A statement that you are a “person with a disability.” • A list of your “functional impairments” or, “major life activities” in which you are “substantially limited. • A description of how each of your functional impairments is directly related to specific elements of your job description. • A description of how your SD has been trained to help you overcome the functional impairments that are associated with the specific duties of your position.

35. (See JAN hand-out) Service Animal Related Job Accommodations (800)526-7234 (Voice) (877)781-9403 (TTY) http://askjan.org/

36. Reasonable Accommodation in the Food Service Industry • The FDA Food Code specifically allows employees to use service animals so long as those animals are not permitted in areas used for food preparation and the employees take certain steps with respect to hand-washing after handling their service animals.

37. Access to State & Local Government Programs & Services and Public Accommodations General requirements - No one can be discriminated against due to their disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any public accommodation. • Public accommodations may impose legitimate safety requirements even if they tend to screen out people with disabilities. • Places of public accommodation have to make modifications in their policies, practices and procedures unless they can demonstrate that to do so would fundamentally alter the nature of the goods and services they offer.

38. ADA Factoid Businesses may ask if an animal is a service animal or ask what tasks the animal has been trained to perform.

39. What about a “no pets” policy? Service animals would still be allowed in an establishment that does not allow pets because service animals are not considered pets under the law. The no pets policy would have to be modified in this case only.

40. Court Cases • Newaygo County, Michigan – County agreed to adopt a written policy stating persons with disabilities may bring their service animals to any county building or county-sponsored activity. Under this policy may be asked if an animal is a service animal and may be asked to describe the service the animal provides and the training that the animal has received. However, they may not be required to document their own disability or show identification or certification of the service animals status. Distributed to all county members, posted in county buildings, and made available to the public upon request.

41. Court Case • Ramada Inn/Country Kitchen Restaurant, Little Rock, Arkansas – Restaurant agreed to post a written policy for customers welcoming individuals and their service animals. The complainant, who is hard of hearing and uses a service animal, alleged the entity requested to see the dog’s identification card and certified documents in violation of Title III. Agreement also requires the restaurant post a written policy for its employees. The policy states that, in cases of doubt, employees should allow the animal to enter if, when questioned, the customer says it is a service animal.

42. Transportation • ADA provides (buses, taxis, trains) that no entity shall discriminate against an individual with a disability in connection with the provision of transportation service, if the individual is capable of using that service. • Transit agencies may ask if an animal is a service animal or ask what tasks the animal has been trained to perform, but cannot require special ID cards for the animal or ask about the person’s disability. • Animal should be trained to sit under the passenger’s seat or at their feet. Aisle should remain clear for tripping hazards and so dog isn’t stepped on. • In some cases, small service animals may ride on a passenger’s lap; however, service animals should not ride on bus or van seats.

43. What about other laws or local regulations? Even if, for example the county health department has a regulation that states that seeing eye or guide dogs are the only kind of service animal allowed, the ADA would take precedence over such a regulation as it gives greater protection to people with disabilities.

44. S. Animals & Healthcare Policies • Consider all the facility areas open to persons & effects a service animal would have on those areas and on the persons within them. • Risk assessment will be based on demonstratable factors, not on speculation about what an animal “might” do or whether an area “might” be unsafe for an animal. • Differentiate between actual risks posed and mere inconvenience or displeasure with the presence of an animal. • Does the presence or behavior of that particular animal create a fundamental alteration or a direct threat to other persons or to the nature of the goods and services provided? (operating room, birthing room)

45. S. Animals & Healthcare Policies • If persons are allowed to be present without being required to observe special precautions (gowning, scrubbing, etc…), it would be difficult to argue that a clean, healthy, well-behaved service animal should be denied access. • If the risk cannot be controlled, then the animal may be removed. • Emergency dept., intensive care unit, recovery room, & other areas may require a case-by-case determination to assess actual risk. • Some facilities have a crate on site for temporary containment while handler is in a restricted area or if the handler is unable to remain with animal.

46. Zoonotic & Trauma Risks • There are no substantiated, published studies that have determined the statistical risks associated with healthy, vaccinated, well-cared for, and well-trained service animals. • Nor is there substantial case-reporting data to indicate that service animals pose any greater threat than the average person. (Hosp Infect Control 1992; Dec: 162-4) • Each case should be evaluated in terms of the condition of the client and the actual risk associated with the individual animal.

47. Healthcare • Restricted access would be allowed only when it can be demonstrated that the presence or behavior of that particular animal would create a … -a fundamental alteration or -a direct threat to other persons or to the nature of the goods and services provided.

48. Factors in risk • Its health & hygiene • Behavior & contact with others • Frequency of that contact • Environment • Ability of its handler to manage behavior • Preventative measures (hand-washing) • Other accommodations/modifications minimizing risk

49. Examples • Persons who are immunosuppressed or otherwise debilitated are not necessarily preempted from being in the presence of a service animal. If visitors are permitted without requiring them to wear masks or gowns may not be at any greater risk if the visitor is accompanied by a service dog. • Client who is recovering from severe burns has a visitor with a service animal; if the client avoids direct contact with the animal, there may be no reason to deny access.

50. Specific, stringent requirements for determining “direct threat:” • Significant risk of substantial harm that cannot be eliminated or reduced by a reasonable accommodation • A case by case determination • A high probability of substantial harm, not slight or speculative • Based on facts, not generalizations or fears, stereotypes or paternalism