DOJ Frequently Asked Questions Documents and Service Animals Revisited

Before getting started on the blog entry of the week (I had a few hours to myself and I find writing blog entries relaxing, NK), I want to wish everyone a Merry Christmas, happy Hanukkah, happy holidays, and a happy new year.

In 2015, Department of Justice issued a guidance entitled, “frequently asked questions about service animals and the ADA,” which I blogged on here. The DOJ document was revised in 2020, here. Since it has been so long from the original blog entry and things have evolved since then, I thought I would revisit the DOJ frequently asked questions when it comes to service animals. Like last time, I thought I would go over and highlight some of the questions discussed in the guidance. I am not going to go over every question-and-answer in the guidance, but will highlight some of them. Accordingly, the number that appears below may not match up with the number of the question in the DOJ document. By clicking on the link above, the reader can see all of the questions. What I have done here, is list the question that the DOJ asks (for sake of convenience, I have sometimes combined questions and rephrased them without changing the substance), and then I offer my own thoughts.

1. What is a service animal?

DOJ: Under the ADA, a service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The tasks performed by the dog must be directly related to the person’s disability.

My thoughts:

1. A) It is absolutely true that a service animal is a dog. However, miniature horses get much the same protection, but they are not referred to in the regulations as a service animal.
2. B) As we have discussed here for example, one of the hot issues at the moment it is whether the disability being accommodated or whether it is the essential functions of the job. The answer makes a great deal of difference when it comes to service animals. As I have said, the better view and certainly the better preventive law view, is that it is the disability being accommodated and not the essential functions of the job.
3. What does do work or perform tasks mean?

DOJ: The dog must be trained to take a specific action when needed to assist the person with a disability. For example, a person with diabetes may have a dog that is trained to alert him when his blood sugar reaches high or low levels. A person with depression may have a dog that is trained to remind her to take her medication. Or, a person who has epilepsy may have a dog that is trained to detect the onset of a seizure and then help the person remain safe during the seizure.

My thoughts:

1. The easy way to think of this is whether the dog is trained to engage in recognition and response and it is related to the person’s disability. It is important to remember that anybody can train the dog.

3. What questions can a covered entity’s employees ask to determine if a dog is a service animal?

DOJ: In situations where it is not obvious that the dog is a service animal, staff can only ask two specific questions: 1) is the dog is a service animal required because of a disability? And 2) what work or tasks had the dog been trained to perform? Staff are not allowed to request any documentation for the dog, require that the dog demonstrate a task, or inquire about the nature of the person’s disability. [italics mine]

My thoughts:

1. A) On the one hand, DOJ is saying that a task performed by the dog must be directly related to the person’s disability. On the other hand, DOJ is saying that where it is not obvious that the dog is a service animal, staff is not allowed to inquire about the nature of the person’s disability. So, it is up to the receiver of the information to make the connection between the work or task(s) the dog does and the person’s disability.
2. B) The key with trying to figure out whether an animal is a service dog is determining whether it has been trained to engage in recognition and response. If it is, then it is a service dog. If it is just a matter of providing comfort for a person with a disability, then it is not a service animal.
3. C) DOJ has a separate publication entitled ADA Requirement: Service Animals, here. That document illustrates just how confusing things can get with respect to what you can ask with respect to a dog where it is not obvious it is a service animal. In particular, the ADA requirement: service animals document says, “when it is not obvious what service an animal provides, only limited inquiries (emphasis mine), are allowed. Staff may ask two questions (emphasis mine):…” Inquiries are not the same as questions. The DOJ final implementing regulations uses the term, “inquiries, here.” As such, the regulations will clearly trump a contradictory DOJ guidance. So, if the inquiries are limited to determining whether the dog is an animal required because of a disability and what work or tasks the dog had been trained to perform, more than two questions are arguably allowed.
4. D) In the ADA Requirement: Service Animals document and in the DOJ Frequently Asked Questions Document, the first question is listed as is, “the dog a service animal required because of a disability.” This question as phrased makes no sense because you are trying to figure out whether the dog is a service animal in the first place. So, the question that makes sense to ask is whether the dog is an animal required because of a disability taking out the adjective, “service.” After all, how can you say a dog is not a service dog based upon information received if the question asked already presupposes a service dog?

E) Service dogs are the only ones protected by the ADA and the Air Carrier Access Act for that matter. However, emotional support animals and assistance animals, see this blog entry, are protected by the FHA. Finally, it is not unusual to see facilities with dogs specifically trained to help others deal with stressful situations. For example, it is not unheard of for courts to have dogs to help alleviate the stress of those having to utilize the court system. Such dogs may be called facility dogs or even therapy dogs. Another example, is hospitals often have facility or therapy dogs working for them. Depending upon the state, facility or therapy dogs may have protections, but you won’t find those protections in the ADA.

4. Does the ADA require a service animal to be professionally trained?

DOJ: No. People with disabilities have the right to train the dog themselves and are not required to use a professional service dog training program.

My thoughts: Make sense. Training an animal to be a service dog is extraordinarily expensive. Some entities will give the dogs away for free, but most service dogs cost an incredible amount of money, which many people can’t afford. Also, depending upon the disability and the breed of dog, training a dog to be a service dog may be something that is easily doable. For example, I have a miniature poodle, and I trained him to alert me to sounds when I am in the house. He has also been trained to help alleviate stressful situations that may arise as well. I don’t actually use him outside of the house (I was actually told by someone that it is not unusual for those in the hearing loss community with service animals to use their service animal in that way). Just because I don’t take him everywhere with me, doesn’t mean it is not a service dog.

5. Who is responsible for the care and supervision of a service animal?

DOJ: The handler is responsible for caring for and supervising the service animal, which includes toileting, feeding, and grooming and veterinary care. Covered entities are not obligated to supervise or otherwise care for a service animal.

My thoughts: This is all absolutely true. However, covered entities are required to make reasonable accommodations to a handler with a service animal as discussed here.

6. Can hotels assign designated rooms for guests with service animals, out of consideration for other guests?

DOJ: No. A guest with a disability who uses a service animal must be provided the same opportunity to reserve any available room at the hotel as other guests without disabilities. They may not be restricted to “pet friendly” rooms.

My thoughts: Every time I read this, I do my best not to go ballistic. If this argument is true, then a deaf person should have the absolute right to insist on a room in a hotel that a nondisabled person could stay in and insist on portable equipment put in so that a deaf person could access the room. Instead, many hotels segregate all persons with disabilities, including the deaf, into certain rooms. A practice that drives me absolutely batty, especially since many of those “deaf accessible,” rooms are in fact not accessible.

7. Does the ADA require the service animal be certified as service animals?

DOJ: No. Covered entity may not require documentation, such as proof that the animal has been certified, trained, or licensed as a condition for entry.

My thoughts: Requiring certification of service animals from what I can gather happens quite frequently. In fact it is such a common occurrence from what I can gather, that it is not unusual for people with service dogs to carry the certification documentation on them.

8. My city requires me to register my dog as a service animal. Is this legal under the ADA? Can the service animal be any breed of dog and if so, must the municipality adjust if they have an ordinance restricting certain breeds of dogs?

DOJ: Mandatory registration of service animals is not permissible under the ADA. However, service animals are subject to the same licensing and vaccination rules applicable to all dogs.

DOJ: A service animal can be any breed of dog and municipalities, must make an exception if a prohibited breed is a service animal.

My thoughts: Readers may also want to check out this blog entry of mine with respect to these issues.

9. When can service animals be excluded?

DOJ: The service animal can be excluded if including the service animal results in a fundamental alteration to the goods, services, program, or activities provided to the public; overrules legitimate safety requirements; or if a particular service animal is not housebroken or out of control and the handler does not take effective action to control it. The DOJ goes on to explain in a separate question that under control often means the service animal is harnessed, leased, or tethered while in public places unless those devices interfere with the service animal’s work or the person’s disability prevents use of the devices. In that case, voice signals or other effective means to maintain control of the animal are in order. Under control also means that the dog should not be allowed to bark repeatedly in a lecture hall, theater, library, or other quiet place. However, barking once or barking a lot because it has been provoked does not mean that the dog is out of control.

My thoughts: I don’t see why the barking exception needs to be restricted to a quiet place. A service dog should not be repeatedly barking, absent provocation, wherever that service dog is located. Also, when it comes to whether a dog is under control, much of it should be common sense.

10. Are hotel guests allowed to leave their service animals in their hotel room when they leave the hotel?

DOJ: No because the dog must be under the handler’s control at all times.

My thoughts: As mentioned above, the particular role of the dog may not always necessitate being with that individual but that doesn’t take away from the fact that it is a service animal. Looking forward to seeing how this plays out in the court system over time, and Loper Bright might actually prove beneficial to persons with disabilities in such a situation.

11. Are restaurants, bars and other places serving food or drink required to allow service animal to be seated on chairs or allow the animal to be fed at the table?

DOJ: No

My thoughts: True, but restaurants are becoming very dog friendly. Here in Decatur, Georgia for example, it is not unusual to see restaurants with extended patios allow dogs and not just service dogs and therapy dogs, to accompany an owner at their table and even provide or allow water bowls to be at the table.

12. Are churches, temples, synagogues, mosques, and other places of worship required to allow individual to bring their service animals into the facility?

DOJ: No because such organizations are specifically exempt from the ADA.

My thoughts: However, you do want to check your individual State law as it may go beyond the ADA. Also, places of worship may be desirous of doing the right thing and make individual exceptions for people wanting to take advantage of their place of worship.

13. Do commercial airlines, apartments, mobile home parks, and other residential properties have to comply with the ADA? (I combined two DOJ questions here).

DOJ combined answer: Commercial airlines are subject to the Air Carrier Access Act and apartments, mobile home parks, and other residential properties are subject to the federal Fair Housing Act.

My thoughts:

1. A) The Air Carrier Access Act, which is something I have written about before, is the exclusive remedy where commercial airlines do not properly deal with the rights of persons with disabilities. The Air Carrier Access Act does not contain a right to a private cause of action. True, a person or their lawyer can file a complaint with the Department of Transportation and they can take action or not.
2. B) The Fair Housing Act is the law that covers apartments, mobile home parks, and other residential properties.
3. C) Only the Fair Housing Act allows for emotional support animals, assistance animals, or therapy dogs.
4. D) I have discussed the regulations applicable to both situations, here and here.

14. If someone’s dog calms them when having an anxiety attack, does this qualify it as a service animal?

DOJ: It depends. The ADA makes a distinction between psychiatric service animals and emotional support animals. If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog’s mere presence provides comfort, that would not be considered a service animal under the ADA.

My thoughts: as you can see on the DOJ explanation here, the line between an emotional support animal and a psychiatric service animal can be incredibly small.

15. Does a hospital have to allow an in-patient with a disability to keep a service animal in his or her room?

DOJ: Generally, yes. Service animals must be allowed in patient rooms and anywhere else in the hospital the public and patients are allowed to go. They cannot be excluded on the grounds that staff can provide the same services.

My thoughts: Title I of the ADA does not contain any service animal rules. Accordingly, you may get a different answer if you are talking about an employee of a hospital that needs a service animal with them, see here for example. Also, this particular issue can get quite complicated. For example, see this case.

Before leaving this blog entry, keep in mind that this is only a guidance from the Department of Justice and not a final rule. Accordingly, as a result of the discussion we had in two different blog entries, here and here, courts will have flexibility with respect to how far they want to go in following this guidance.