Accommodating Fido: Service and Assistance Animals on Campus

Accommodating Fido: Service and Assistance Animals on Campus

With the beginning of a new academic year approaching, this is the time of year that institutions begin to see new requests for students and employees to bring service animals and assistance animals on campus.  Below we discuss the rules on when (and where) to permit service animals and assistance animals.

Service animals may be permitted on campus as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  Assistance animals may be permitted in certain limited areas on campus as a reasonable accommodation under Section 504 of the Rehabilitation Act of 1973 (“Section 504”).  

What is a service animal?
Higher education institutions have an obligation under the ADA to provide reasonable accommodations for individuals with disabilities in places of public accommodation, which extends to allowing service animals on campus if certain conditions are satisfied.  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 service animals for the purposes of this definition.”  28 C.F.R. § 36.102.  The tasks performed by the service animal must be directly related to the individual’s disability.  Importantly, a service animal does not provide “emotional support, well-being, comfort, or companionship.”  (Such “assistance animals” are discussed later in this article.)  In certain circumstances, miniature horses can be considered service animals, though requests to bring miniature horses on campus are very rare.

How does an institution determine if an animal is a service animal?
There are very specific rules about what institutions may ask about the nature or extent of a person’s disability in order to determine whether an animal is a service animal.  An institution may not question the nature or extent of a person’s disability.  There are two questions that may be asked when the individual’s disability and the worked performed by the animal are not readily apparent: (1) if the animal is required because of a disability, and (2) what work or task the animal has been trained to perform?  However, these questions may not be asked when it is readily apparent that a service animal is trained to work or perform tasks for an individual with a disability.  28 C.F.R. § 36.302(c)(6).  For example, it would not be permissible to question an individual with a disability about her need for a service animal when it is clearly evident that the individual is blind or has low vision.  

What documentation can an institution require?
For requests for service animals, once the two inquiries above are satisfied (if appropriate), individuals with disabilities cannot be asked for documentation that the animal has been certified, trained, or licensed as a service animal.  Indeed, one federal court recently held that security guards exceeded the permissible scope of inquiry regarding a female’s service dog by demanding its registration papers, even though the dog was wearing a vest identifying the dog as a service animal.  
De Leon v. Vornado Montehiedra Acquisition L.P., 2016 WL 814825 (D.P.R. Feb. 29, 2016).  

Once the institution is satisfied that the animal in question qualifies as a service animal, the animal must be permitted to accompany the individual to all areas of the institution where the individuals goes, subject to the rules on restricting qualified service animals.

When can an institution deny access to a service animal?
Even if an animal qualifies as a service animal, there are three situations in which it is appropriate to deny the animal’s access to campus.  

  1. If the animal is out of control and its handler does not take effective action to control it, the animal can be removed from campus.  Animals that exhibit uncontrolled barking, snarling, or jumping, or animals that are not harnessed or leashed, are not under the control of their handler and may be removed.
  2. If the animal is not housebroken, it can be removed.  
  3. If the animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by a reasonable modification of other policies, practices, or procedures, it may be removed.  This often comes up when students or co-workers are allergic to a service animal.  In that case, if it is reasonable to rearrange schedules or room assignments to eliminate the issue, the service animal can be permitted to stay on campus in the modified arrangement.

It is impermissible to refuse to permit a service animal on campus because others may fear the dog or because the dog may be associated with a breed that people normally consider aggressive.  This is because the ADA requires an individualized assessment of the service animal’s actual conduct, not fears or stereotypes.

What is an assistance animal?
Assistance animals (which are also commonly referred to as emotional support animals, support animals, or therapy animals) are permitted only in housing.  Therefore, requestsfor assistance animals should be considered only for individuals who reside on campus or in housing owned by the institution, and the request should be limited to having the animal in the housing, not other areas of campus.  If an animal qualifies as a service animal, the animal is automatically permitted in campus housing, whether it is an assistance animal or not (unless, of course, the service animal falls into one of the three categories noted above for denied access).

Assistance animals are not pets.  They are animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or that provide emotional support that alleviates one or more identified symptoms or effects of 
a person’s disability.  Section 504 does not require an assistance animal to be individually trained or certified.  Dogs and cats are the most commonly requested assistance animals, but Section 504 does not limit assistance animals to any particular type of animal.  

How does an institution determine if an animal is an assistance animal?
The inquiry permitted for assistance animals is similar to that for service animals.  First, the institution may ask:  (1) if the individual has a disability, and (2) if the individual has a disability-related need for the animal.  If the answer to these questions is no, then the request can be denied.  
If the answer is yes, the institution must permit the animal to live with the individual, subject to the receipt of documentation (if appropriate).  

What documentation can an institution require?
An institution can require some documentation of the need for the assistance animal, unlike service animals.  If the disability is not readily apparent or known, the individual can be asked for documentation of the disability and her disability-related need for the animal.  If the disability is readily apparent and known, the individual may only be asked for documentation of the need for the animal.  For example, documentation can come from a physician, psychiatrist, social worker, or other mental health professional to support a need for emotional support that alleviates a symptom of a disability.  Such documentation is sufficient if it establishes (1) a disability, and (2) that the animal will provide some type of disability-related assistance or emotional support.  

When can an institution deny access to an assistance animal?
The request can be denied if the specific assistance animal poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation.  If, for example, a roommate of an individual needing an assistance animal has an allergy, perhaps the two can be separated.  Also, if the specific animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by an accommodation, it can be removed.  

These analyses must be individualized to the animal in question and must be based on the animal’s actual conduct, not speculation about the breed or size.

Dealing with requests for animals on campus can be tricky and it’s important to ask the right questions – and to know which questions not to ask. There are many gray areas that are not squarely addressed by regulation and Saul Ewing can help you navigate through those issues. 

This article appears in the Summer 2016 edition of Saul Ewing’s Higher Education Highlights newsletter. Click here to see the complete newsletter.