One of the things people frequently ask me (or in some cases try to dispute with me), are the legal requirements, rights, and certifications required for having a service animal that goes everywhere with you. I am constantly educating about this–sometimes I feel like a zoo exhibit! What appears below is my attempt to offer links and information to those of you who wonder if you might qualify for a service dog, and what needs to be done so that you can access the freedom this kind of help might offer you.
First, I’m going to explain the differences between a Service Dog, and Emotional Support Animal (ESA) and a Therapy Dog. Next I’m going to talk about what requirements need to be met for you to become a Service Dog handler, for both you and your dog. Then I will wrap up with what folks can ask you, legally, about your animal. Along the way I will provide links and references to the US federal law (the ADA or American’s with Disabilities Act) as administered by the Department of Justice (DOJ).
There are local jurisdictions which also attempt to make laws about these helper animals, but the federal stipulation is that the more lenient of the two laws will apply on a local level. Many local governments will attempt to “crack down” or regulate service animal access, but their local laws need to be more lenient than the federal requirements or they simply do not apply. Therefore, stating the federal policies here will inform you of the maximum stringency that can be allowed in the application of accessibility laws. Quote from ADA Title II, Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services, Supplementary Information, Relationship to Other Laws: (b) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal, State, or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.
Service Dogs, ESAs and Therapy Dogs
Most people in the general public do not understand the difference between these classifications, but they are very important distinctions when it comes to accessibility.
Therapy dogs are dogs who work with the general public under the guidance of their non-disabled handler. They generally work at a medical facility (such as a hospital or nursing home), to provide comfort or other services to patients at those facilities. They are granted full access in the facility where they work, but are not legally required to have any sort of special access anywhere else. They are highly trained to work with their patients, but do not work for the benefit of their handler.
Emotional Support Animals (ESAs), provide comfort and companionship to their handler. However, these animals provide these services without any special training or doing any special work (apart from being wonderful, compassionate, floofalumps). Because they are deemed medically necessary (and often prescribed for those with anxiety, depression or PTSD), special circumstances arise for housing them. Most airlines will also allow them to fly–as long as the animal’s paperwork is in order (vaccinations, letter from a prescribing medical professional, etc.). There is no legal stipulation about what type of animal can serve as an ESA. They are legally allowed to live in rental properties that would otherwise exclude pets. Airlines allow them, through their own commitments, but are not legally required to do so under the ADA. (So, if you see an ESA in the airport, never assume they have been trained to work with the public, because that isn’t required of them as a baseline–stay back, and be careful).
Service Dogs (notice I say dogs, not animals) are trained to perform work or tasks for a disabled person (covered by the ADA). Since 2011 only dogs and miniature horses have been allowed as legally protected service animals. They are considered medically necessary to mitigate the symptoms of someone’s disability (not just because they are floofy, but because they do something they were trained to do for their handler). Work means multiple tasks, or ongoing tasks (monitoring blood sugar or alerting for seizures). Tasks are simply single requests (“sit” is an example of a task). Since these animals are considered a medical necessity, not only will they have access to rental property that would otherwise disallow pets, they are legally required to gain access to almost all public areas. Exceptions to access would include food preparation areas (restaurant kitchens for example) or clean rooms. So, no, Fluffbutt and I won’t be building satellites or computer chips anytime soon.
Americans with Disabilities Act (ADA)
The ADA was signed into law by George H. W. Bush in 1991 and has subsequently been updated in 2010, 2011, 2012, 2013 and 2016. The link above provides links to the full text of the law’s various titles as they currently stand, for any who want to see it in black and white.
Under this law, folks with medical disabilities are specifically granted access to employment, housing and public spaces without discrimination due to their disability. This means that accommodation needs to be made so that people with let’s say wheelchairs can access and use restroom facilities, the post office, or go to the movies the same way anyone else can. Usually no one has a problem with this when it is easy to see the need for the device. When an animal provides that same sort of mitigating support for an individual as a medical device, then that service dog must also be accommodated. Where this can get tricky for most members of the public is when they see someone who doesn’t LOOK disabled accessing services (whether it is handling a service dog, or parking in those blue spaces at the local discount store).
There are stipulations, of course. Animals allowed to access public areas must also be able to do so without posing a distraction. They must be potty trained as baseline, for obvious reasons. They should also not bark or provide other types of disruption. My pup likes to be quiet all day, and then misbehave on the bus by barking once–not always, but she recognizes that this is a sure way to get my attention. It does. Naughty!
Obviously, what is implied from my discussion, and stated quite plainly in the law is that the 1) handler must be disabled, and the 2) dog must provide work or tasks that the disabled person cannot otherwise do for themselves. If these two things are true, then the dog is permitted to have access to public areas (unless it is a food prep or clean room area). In order to stay, the dog must be potty trained, and not present a disruption to others accessing the area (which would include, but not limited to, growling, barking, biting, or scaring people).
Needless to say, when you hear someone muttering in a stage whisper (as they do), that they “sure wished I could take my dog everywhere”, the response is, do you have an ADA protected disability? This usually nips any potential bullying or snide remarks in the bud. From the Introduction to the ADA, sponsored by the DOJ: “To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.”
If you are disabled by medical diagnosis, or just perceived to have impairments, you qualify. You do not have to have a prescription from a doctor to give you permission to have a service animal, although if you want your landlord to grant you access this is among the documentation you may need to supply, you may also need to supply it to the airline.
You can find most of this information in the “Frequently Asked Questions about Service Animals and the ADA” published by the Department of Justice.
Many people believe that only some official organization or a professional trainer can train these animals. That is not required by law, although it was greatly discussed and rejected. Such a requirement was deemed discriminatory, because it would provide a barrier for lower income people to access these medically required animals. And, newsflash, most disabled folks are lower income. We’ll talk more about training in a future post.
The TWO Questions
Most folks who work with the public already know what they are legally allowed to ask when you have a service dog. There is no requirement to put them in a vest or carry any form of ID for your service animal. There are lots businesses willing to sell you that stuff, but they don’t mean anything. I do find that when we go out with Fluffbutt’s Service Dog vest on, we are rarely questioned, and left to take care of business. Yet, on the rare occasion I leave the vest at home, we are usually questioned. Since the interaction alone sets off my stress response, I usually don’t forget the vest–but if I had more spoons to have this argument and do this community education, then I probably wouldn’t need the service dog.
Legally, people are only allowed to ask you two questions about your service dog: 1) is this a service dog (meaning, are you disabled, and does this animal do work for you that you cannot do yourself)? If you answer yes, they can ask a follow-up question, 2) what work or task does the dog perform? Notice, they are NOT allowed to ask about your disability, which is a medical issue You are allowed to keep this information completely private. Digging into someone’s medical history, or diagnosis, in public as a condition for access is a violation of the ADA, and probably a violation of HIPAA.
That second question ties people up sometimes. They want to know what you’ve got, especially if your disability does not seem obvious to them. It is still none of their business. One time, when I was confronted with these questions, I answered with my dog’s primary work when we are in public which is to provide DPT (deep pressure therapy) as needed. This work allows me to remain calm and focused even in a sensory rich environment, but I don’t need to explain that much. In fact, getting into this much detail begins to expose what my medical issues and disability is–which is no one’s business but my own. Still, this employee did not want to accept DPT as a legitimate response, perhaps because he was wanting to hear some sort of medical diagnosis. The general public definitely needs some education about these allowable questions, and that medical diagnoses are not required to be divulged for access to be granted.
Fraudulent Service Dogs, Local Authorities, and Nosy Citizens
There has been a lot of discussion lately about service dog fraud, and notable problems with ESAs on airlines, that has people questioning about Service Dog access. Many are calling for certifications, which are not legally required by the DOJ primarily to assure that all individuals who need this support are able to get it, without having to purchase a dog with a $20k price tag.
I have had people who formerly worked for municipal governments, argue with me that the ADA wasn’t a law, and that city governments had the right to prohibit all animals from restaurants–because there was such a problem with service dog fraud. I don’t know if the fraud issue is true, but I do know that the ADA is federal law, and that it grants access to those who meet the requirements.
I have had nosy young grocery store employees insinuate to their co-workers (within my earshot, of course) that I was committing a felony by having “Service Dog” on my pup, instead of “Service Dog in Training”. Now, here is the deal. I am disabled. My dog is a pup and still learning every day. However, she knows a handful of service dog tasks and work that she reliably delivers for me. This means that she is a full-fledged service dog, she just also happens to be training and learning more manners, tasks and work every day. People are quick to assume that because I don’t look disabled, and I have a puppy, that either she isn’t really working, or I’m just training her for someone else. Sometimes, that can get nasty.
When I began this adventure, I decided I was going to be a loud self-advocate and community activist–doing only what was required by law to have my relationship with Fluffbutt. Some weird circumstances have shown me that I need to do more than what is legally required in order to protect my friend and greatest ally. Although it isn’t required, I will be having her tested and “certified”, not because it is necessary, but because I want us both to have that protection should anything ever go wrong out in public. That is more for a future post as well, so tune in later to hear about the time the lady in the laundromat screamed at me and the pup for just standing there.
Thanks for reading, and coming along on this journey with me. If you have questions, or would like me to post about something specific, please leave a comment below! Fluffbutt and I love comments–so please do share your experiences, insights, stories and wonderings. Feel free to share widely. See you next time.