Assistance Animals

I. PURPOSE

Federal and state laws protect the right of individuals with physical and mental abilities to participate in all aspects of society. To facilitate those rights, various laws authorize individuals with disabilities to use service or assistance animals to obtain or improve access to programs, services, and facilities.

II. HISTORY

Since the mid-twentieth century, there has been an ongoing effort in the United States to address discrimination against people with disabilities. In 1968, Congress passed the Fair Housing Act (FHA), which prohibits discrimination against individuals with disabilities who rent a residence, purchase a home, or seek housing assistance. Five years later, Congress passed Section 04 of the Rehabilitation Act of 1973 (Section 504) which prohibits programs receiving federal funds from discriminating against people with disabilities. The FHA and Section 504 laid the groundwork for the comprehensive Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against people with disabilities in employment, public services, public accommodations, and telecommunications. In Hawaii, the Hawaii Revised Statutes prohibits discrimination against people with disabilities in real property and also include the definition of a service animal and penalty for misrepresentation of a service animal.

Because many individuals with disabilities use animals to improve accessibility, disability laws extend protection to service or assistance animals. However, various lawmaking efforts have produced inconsistent and, at times, contradictory laws, regulations, and guidance regarding these animals.

III. APPLICABILITY TO BYU–Hawaii

With the exception of Title III of the ADA, each of the laws referenced above applies to BYU–Hawaii. Title I of the ADA applies to employers with fifteen or more employees. Because BYU–Hawaii employs more than fifteen employees at any given time during the calendar year, it must comply with Title I of the ADA.

Title III of the ADA applies to places of public accommodation. Entities controlled by religious organizations like BYU–Hawaii are exempt from Title III requirements. Even though it is exempt, BYU–Hawaii has voluntarily committed to complying with these provisions “to the extent reasonably practicable”. Section 504 applies to colleges or universities that receive federal financial assistance. BYU-Hawaii is required to comply with Section 504 because it receives funds from the federal government. The FHA applies to dwellings, defined as “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, “a residence for one or more families,” which includes single individuals. Because BYU-Hawaii provides on-campus to students, it must comply with each of these laws.

IV. REQUIREMENTS

The following section outlines the applicable laws governing the use of service and assistance animals.

A. Definitions

The key terms below are essential to understanding laws regarding service and assistance animals.

1. Assistance Animal

The term “assistance animal” encompasses both service animals and emotional support animals. The Department of Housing and Urban Development (HUD) defines “assistance animal” as any kind of animal that is “not a pet,” but “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.”

2. Emotional Support Animal

Under ADA, emotional support animals are animals that provide “emotional support, well-being, comfort, or companionship.”

3. Service animal

A service animal is defined under ADA as a dog or miniature horse that “is 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.”

Under federal law, both dogs and miniature horses may qualify as service animals, but Hawaii law recognizes only dogs as service animals.

B. Title I of the ADA (Employment)

Title I of the ADA prohibits an institution from discriminating against an individual based on a disability with respect to the terms, conditions, and privileges of employment. It requires an employer to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship” to the employer’s business operation.

Title I does not specifically address service or assistance animals. However, an employer must evaluate an employee or applicant’s request to use a service or assistance animal as it would any other request for an accommodation.

C. Title III of the ADA (Places of Public Accommodation)

Under Title III, individuals with disabilities must be provided “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” Accordingly, Title III permits individuals with service animals to enter all facilities and areas where the public is permitted. Public accommodations are strictly prohibited from charging disabled individuals a surcharge for a service animal to access the place, even if people accompanied by pers are normally required to pay an additional fee.

Owners or representatives of places of public accommodations are prohibited from asking about the nature or extent of a person’s disability but are permitted to ask the following questions to determine if an animal qualifies as a service animal:

1. Is the animal required due to a disability?
2. What task(s) has the animal been trained to perform?

If the answer to the first question is “no” or if the animal has not been trained to perform tasks supporting the person with a disability, the animal may be excluded from a place of public accommodation.

Title III prohibits inquiries about a service animal when it is readily apparent that an animal has been trained to perform tasks for an individual with a disability. Examples of situations in which it is readily apparent that an animal is trained to perform a task include a dog or a miniature horse guiding a blind person, pulling an individual’s wheelchair, or providing stability and balance to a person with “an observable mobility disability.” Individuals cannot be required to provide documentation that an animal has been certified, trained, or licensed as a service animal.

Under Title III, a service animal must be controlled by its handler and be on a harness, leash, or other tethers. A tether is not required if a handler cannot use a tether because of a disability or if the use of a tether would restrict the service animal’s performance of its tasks. If a service animal is not on a tether, it must still be under a handler’s effective use of control, such as voice or signal control. If the animal is not under a handler’s control or it is not housebroken, then it can be excluded from a place of public accommodation. A service animal can also be excluded if its use “poses a direct threat to the health or safety of others,” which is determined by “the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures [will mitigate the risk].” A person whose service animal has been excluded must still be permitted to “obtain goods, services, and accommodations” without the animal.

Title III requires a place of public accommodation to modify its policies to allow the use of miniature horses by individuals with disabilities so long as the horse has been trained to perform tasks that assist the individual with a disability. To determine whether or not reasonable modifications can be made to allow a miniature horse into a facility, the following four factors may be considered:

1. whether the facility can accommodate the type, size, and weight of the horse
2. whether the handler has control of the horse
3. whether the horse is housebroken
4. whether the facility’s safety requirements will be put at risk by the presence of the horse

As previously noted, Hawaii law does not recognize miniature horses as service animals.

D. Fair Housing Act

The FHA makes it unlawful for a property owner to discriminate against an individual in the rental of a dwelling or the terms of a rental of a dwelling because of a disability. Discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such a person equal opportunity to use and enjoy a dwelling.”

HUD issued guidance in 2011 that interprets the FHA as applying to assistance animals. Stating that “[d]isabled individuals may request a reasonable accommodation for assistance animals in addition to dogs, including emotional support animals, under FHA.”

HUD’s guidance permits property owners to ask the following questions when receiving a request for an accommodation necessary to afford a resident with the “equal opportunity to use and enjoy a dwelling”:

1. Does the person seeking to use and live with the animal have a disability?
2. Does the person making the request have a disability-related need for an assistance animal?

If the answer to both questions is yes, then a property owner must grant the accommodation and make an exception to a “no-pets” policy. Property owners are permitted to request documentation from an individual as proof of disability if the disability is not readily apparent. When requesting documentation for proof of disability, property owners are not allowed to request access to medical providers, medical records, or an extensive medical background regarding an individual’s disability.

Property owners may refuse requests for accommodations if they would “impose an undue financial or administrative burden or would fundamentally alter the nature of the housing program or services.” Additionally, the FHA does not fundamentally a property owner to make a dwelling available to a tenant if an assistance animal constitutes a direct threat to others or if the assistance animal would cause significant damage to the property of others. This determination must be made after the examination of objective evidence of the specific animal’s actual behavior and cannot be based on speculation, fear, or suspicions.

E. Section 504 of the Rehabilitation Act of 1973

Pursuant to Section 504, educational institutions that receive federal financial aid must ensure that no qualified student is denied the opportunity to participate in academic programs or other aspects of student life due to disability. The only reference to service or assistance animals in Section 540 is the statement that an institution “may not impose upon [disabled] students other rules . . . such as the prohibition of . . . dog guides in campus buildings, that have the effect of limiting the participation of handicapped students in the [institution’s] education program or activity. The Department of Education (ED) and HUD, both of whom have enforcement responsibilities under Section 504, have taken contrary positions as to whether Section 504 is limited to service animals or extends to assistance animals.

4. U.S. Department of Education’s Interpretation of Section 504

ED has not issued clear guidance on the standard it applies to Section 504 with respect to the use of animals by people with disabilities. On its website, ED’s Office for Civil Rights (OCR) asserts that “[i]n general, Section 504 and Title II [of the ADA] nondiscrimination standards are the same, and in general, actions that violate Section 504 also violate Title II.” Title II prohibits discrimination “on the basis of disability by public entities.” OCR has applied Title II in resolution agreements with private universities resolving complaints over service animals.

Based on this information, it is likely that ED will apply the standards of Title II in enforcing Section 504. The treatment of animals under Title II mirrors Title III. Title II requires an entity to “modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” It does not provide for emotional support animals. Inquiries regarding a service animal are limited to asking if the animal “is required because of a disability and what work or task the animal has been trained to perform,” and service animals may only be excluded if “[t]he animal is out of control and the animal’s handler does not take effective action to control it” or if “[t]the animal is not housebroken.”

5. U.S. Department of Housing and Urban Development’s Interpretation of Section 504

HUD has enforcement responsibilities under Section 504 for entities that accept federal housing funds. HUD’s guidance requires property owners accepting federal funds to apply the FHA framework to Section 504 when evaluating accommodation requests involving animals. As a result, HUD’s interpretation of Section 504 permits accommodations for assistance animals, not just service animals.

F. Discrimination in Real Property

Under Hawaii’s law, the property owner may not “discriminate against a person with a disability . . . by refusing to make reasonable accommodations” for a person with a disability to have equal opportunity to use and enjoy housing including using a service animal. However, the owner may condition a person with a disability to restore the interior of the property that existed before including wear and tear.

V. PENALTIES

A. ADA

Under Title I of the ADA, an employee may file a complaint with the Equal Employment Opportunity Commission against an employer alleging discrimination on the basis of disability. An employer found to have discriminated against an employee on the basis of a disability may be required to reinstate a terminated employee, pay back wagers, or provide “other equitable relief.”

B. Section 504

Individuals who believe a property owner who accepts federal housing funds have violated Section 504 may file a complaint with the Office of Fair Housing and Equal Opportunity, which may assess fines or impose remedial action in conjunction with the U.S. Department of Justice. Individuals may also file suit in court without involving a federal agency.

For Section 504 complaints made to ED, OCR will seek the institution’s cooperation to resolve any findings. If the institution does not comply, then OCR may refer the institution to the U.S. Department of Justice for legal proceedings or revoke the institution’s federal funding.

C. Misrepresentation of a service animal

Under Hawaii’s law, individuals who misrepresent as a service animal any animal that doesn’t meet the requirements shall be fined not less than $100 and not more than $250 for the first violation, and not less than $500 for a second violation and each violation thereafter.

VI. RELATED MEMOS

The following compliance memos provide helpful information regarding areas of the law that relate to service and assistance animals.

1. Section 504 of the Rehabilitation Act of 1973
2. Testing Accommodations