The Department of Justice (“DOJ”) Civil Rights Division recently issued a FAQ explaining the duty of government agencies, businesses, and non-profit organizations that provide goods or services to the public (“covered entities”) to make “reasonable modifications” in their policies or procedures when necessary to accommodate people with disabilities with service animals.
In particular, this FAQ clarifies that only dogs who have been trained to perform a specific job or task qualify as service animals under the Americans with Disabilities Act (“ADA”), and that “emotional support” dogs, who provide comfort merely by being present with a person, do not constitute service animals under the ADA, though such dogs may qualify as service animals under state law.
Although the DOJ acknowledged that the ADA requires that service animals be under the control of the handler at all times, the DOJ noted that in the school (K-12) context, the school may need to provide some assistance to enable a particular student to handle his or her service animal.
This interpretation is in accordance with the DOJ’s recent letter of finding issued to a New York school district, requiring it to “reasonably modify” its policies by providing an aide and training other staff who worked with a nonverbal disabled student to issue the dog commands, tether and untether the dog, escort the dog and the student, and use the dog in accordance with the student’s seizure protocol.
The DOJ also noted that service animals must be allowed to accompany their handlers to and through self-service food lines and may not be prohibited from communal food preparation areas. However, the ADA does not require that service animals be allowed to be seated on chairs or be fed at tables where food or drink is served. Additionally, the ADA does not override public health rules prohibiting dogs from swimming in public pools, though dogs must be allowed in the deck/surface areas surrounding applicable pools.
Further, the DOJ provided several examples of situations when one individual may require more than one service animal (e.g., one dog assists with way-finding and another dog provides seizure alerts); such persons must be allowed to be accompanied by all of his/her animals. However, the DOJ explained that if, for example, a crowded small restaurant can only accommodate one animal under a table, it is permissible to request that the additional animal(s) be left outside.
The DOJ also reiterated that covered entities may not require documentation or service animal certification, such as proof that the animal has been certified, trained, or licensed as a service animal, as a condition for entry. However, service dogs are not exempt from any local animal control, public health, or licensing and registration requirements.
Further, the DOJ explained that a service animal may not be excluded based on assumptions or stereotypes about the animal’s breed or how the animal might behave. Even if a municipality has a prohibition on a specific breed of dog, an exception must be made for a service animal of a prohibited breed unless the dog poses a direct threat to the safety or health of others.
Illinois school districts have faced multiple lawsuits statewide over service animal issues. For more information regarding this guidance or service animals generally, please contact Bennett Rodick or Laura Pavlik.