Most working and Service Dog handlers and trainers understand that United States federal law provides protection and access for Service Dogs. Still, it can be challenging to truly grasp all of it. Use this handy guide to wade through the legal jargon.
Before we jump feet-first into murky legal waters, we need to lay out a few vital definitions and clarify some points. First and foremost, federal Service Dog law and state Service Dog law are very, very, very different and it’s vital that you know how the laws vary in your state, county, city or town.
Federal Service Dog law applies all over the country and is the universally accepted standard in the United States. State Service Dog law may offer further clarification, add additional requirements or outline expectations for various types of working/Service dogs or for dogs in training. It is generally accepted that whichever law provides the most freedom for a disabled individual with a Service Dog in any given state is the one teams will abide.
Next, there are several pieces of federal Service Dog law strewn throughout the legal system. In this post, we’ll be referring to the American Code of Federal Regulations (CFR). Other important Service Dog laws are contained in the Americans with Disabilities Act (ADA), Fair Housing Amendments Act (FHAA) and the Air Carrier Access Act (ACAA). We’ll be addressing those at a future time. Here’s a chart, though, that breaks down each resource and what it’s good for:
|What Is It?||Why Do We Care?|
|CFR||Code of Federal Regulations
American federal law
|Provides the meat and bones of federal Service Dog law|
|ADA||Americans with Disabilities Act
A civil rights law
|Bestows public access rights to disabled individuals with a Service Animal|
|FHAA||Fair Housing Ammedments Act
A civil rights law amendment
|Extends ADA protection to disabled individuals with a Service Animal who are seeking housing in the public sector|
|ACAA||Air Carrier Access Act
Specific section of the CFR
|Ensures access to air transportation on all carriers for all individuals with a Service Animal|
And, finally, before we get started, a disclaimer: we are not lawyers and cannot provide legal assistance or help. If you need legal assistance concerning anything involving your working or Service Dog, please contact your own lawyer or the Department of Justice.
Alright? All clear? Let’s get started. As always, should you have any questions, comments, concerns, thoughts or ideas regarding this post, don’t hesitate to contact us.
C.F.R. § 36.202 – NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
Definitions for C.F.R. § 36.202 are provided by the ADA.
“Accessible” Refers to a site, facility, work environment, service, or program that is easy to approach, enter, operate, participate in, and/or use safely and with dignity by a person with a disability.
“Major Life Activity” Refers to activities that an average person can perform with little or no difficulty.
“Person/Individuals with disability” (1) has a physical or mental impairment that substantially limits one or more major life activities; OR (2) has a record of such an impairment; OR (3) is regarded as having such an impairment.
“Physical Impairment” Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
“Public Accommodation” Facilities whose operations affect commerce and fall within at least one of the following 12 categories: places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms); establishments serving food or drink (e.g., restaurants and bars); places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums); places of public gathering (e.g., auditoriums, convention centers, lecture halls); sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers); service establishments (e.g., laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals); public transportation terminals, depots, or stations (not including facilities relating to air transportation); places of public display or collection (e.g., museums, libraries, galleries); places of recreation (e.g., parks, zoos, amusement parks); places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools); social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses).
“Service animal” 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.
Public Accommodations Shall Provide Access
(a) General. A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.
According to the ADA, a “public accommodation” is any private entity that operates with the intent of allowing members of the public access for the purpose of business, entertainment, education, receipt of services or any other purpose. Most places a Service Dog team will visit or need access to are “public accommodations.” So, the opening paragraph of federal Service Dog law states, pretty clearly, that public accommodations must allow an individual with a disability access with a Service Dog (or any other piece of equipment that mitigates their disability), as long as the Service Dog won’t disturb the actual (not perceived) ability of the public accommodation to continue providing their service.
Referrals Are Acceptable
(b) Specialties—(1) General. A public accommodation may refer an individual with a disability to another public accommodation, if that individual is seeking, or requires, treatment or services outside of the referring public accommodation’s area of specialization, and if, in the normal course of its operations, the referring public accommodation would make a similar referral for an individual without a disability who seeks or requires the same treatment or services.
(2) Illustration—medical specialties. A health care provider may refer an individual with a disability to another provider, if that individual is seeking, or requires, treatment or services outside of the referring provider’s area of specialization, and if the referring provider would make a similar referral for an individual without a disability who seeks or requires the same treatment or services. A physician who specializes in treating only a particular condition cannot refuse to treat an individual with a disability for that condition, but is not required to treat the individual for a different condition.
It is not “discrimination” if a public accommodation refers a Service Dog handler to another place of business, service or entertainment if the public accommodation in question cannot provide the treatment/services the individual requests or needs. As an example, if you have a heart condition and you’re visiting the kidney doctor, it’s not discriminatory for the kidney doctor to refer you to a cardiologist. However, under federal Service Dog law, if you have a kidney issue, the kidney doctor cannot refuse to treat you because you’re disabled or because you have a Service Dog.
Service Animals Allowed
(c) Service animals—(1) General. Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
Public accommodations must allow Service Dogs who are accompanied by an individual with a disability.
Exclusion of Service Animals
(2) Exceptions. A public accommodation may ask an individual with a disability to remove a service animal from the premises if:
(i) The animal is out of control and the animal’s handler does not take effective action to control it; or
(ii) The animal is not housebroken.
(3) If an animal is properly excluded. If a public accommodation properly excludes a service animal under § 36.302(c)(2), it shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.
If your Service Dog is out of control (which includes any behavior that infringes on the rights of other customers/clients/visitors/patrons, including sniffing, begging, growling, whining, barking, wandering, jumping, or any other rude behavior) or your Service Dog is sick or eliminates in public, it’s perfectly within a business’s right to ask you to remove your partner from the premises. If a business asks you to remove your Service Dog because of “out of control” behavior, they must allow you the opportunity to finish whatever it is you came to do without your partner present. Only the dog can be excluded for “out of control” behavior, not the handler as well.
Service Animal Under Handler’s Control
(4) Animal under handler’s control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).
(5) Care or supervision. A public accommodation is not responsible for the care or supervision of a service animal.
Under U.S. federal law, your Service Dog must be under your control. Unless your disability prevents you from using a harness, leash or “other tether,” like a collar, wheelchair arm, vest or other working gear, or your partner’s job would be impeded by use of a leash, your Service Dog must be on-leash or otherwise attached to you. If your partner’s job requires off-leash work or you are not able to leash your Service Dog due to your disability, your Assistance Dog has to be under your direct control with verbal or non-verbal commands/signals. Additionally, you and only you are responsible for your Service Dog — a business or employee is not required to watch or care for your partner while you’re there.
Questions Businesses May Ask
(6) Inquiries. A public accommodation shall not ask about the nature or extent of a person’s disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public accommodation may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public accommodation shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public accommodation may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
A place of public accommodation can’t ask you about your disability, but they may ask the following two questions:
1.) If your partner is required because of a disability (NOT “What is your disability?” or “Are you disabled?”)
2.) What specific, trained tasks your partner performs for you
There is no documentation, paperwork, license or certification required as proof that a dog is a Service Dog, and businesses can’t require that you produce any documentation. If it’s obvious your dog is working as a Service Dog, under federal law, a public accommodation may not ask you to clarify your partner’s purpose further.
Complete Access Required At No Charge
(7) Access to areas of a public accommodation. Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.
Anywhere a person without a Service Dog would be allowed to go within a public accommodation, you’re allowed with your partner. Having a Service Dog does not give you special access to anywhere members of the general public aren’t allowed, like the kitchens in a restaurant or an operating room in a hospital.
(8) Surcharges. A public accommodation shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public accommodation normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
You can’t be required to pay a fee to have your Assistance Dog with you, even if people with pets are required to pay a fee. A public accommodation also can’t make up special rules for you and your Service Dog to follow that people without a four-legged friend wouldn’t have to abide by. However, if your partner causes damage, it’s reasonable for a business to charge you to repair the damage. Again, you and only you are responsible for your Service Dog’s conduct, actions and deportment.
(d) Check-out aisles. A store with check-out aisles shall ensure that an adequate number of accessible check-out aisles are kept open during store hours, or shall otherwise modify its policies and practices, in order to ensure that an equivalent level of convenient service is provided to individuals with disabilities as is provided to others. If only one check-out aisle is accessible, and it is generally used for express service, one way of providing equivalent service is to allow persons with mobility impairments to make all their purchases at that aisle.
Stores are required to have check-out aisles that allow you and your partner to maneuver. If the only check-out aisle that allows you to move through easily with your Assistance Dog is a specialty one (like 15 or fewer products, or card members only), then you must be allowed to utilize that aisle for all of your purchases, even if you normally wouldn’t qualify.
(e)(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party—
(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;
(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;
(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;
(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and
(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.
(2) Exception. The requirements in paragraphs (iii), (iv), and (v) of this section do not apply to reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.
Any place of non-permanent lodging (hotel, campground, hostel, etc.) must be certain you can obtain an accessible room as quickly as a guest who doesn’t need special accommodations. They must be able and willing to verbally explain the accommodations available so you can be certain any given room meets you and your partner’s needs. Rooms that provide accommodations for individuals with disabilities must be held for guests who need accommodation unless all other rooms are filled. Finally, they must ensure that if you reserve a room in any fashion that provides specific accommodation for your disability, the room remains yours. It can’t be given away or booked by anyone else for any reason. However, if you book your room with a third-party like Hotwire or Priceline, the hotel doesn’t have to honor room accommodations. You must book your room directly with a hotel in order to receive assured accommodations.
There you have it, the C.F.R federal Service Dog law in its entirety. That’s the base upon which all other Service Dog laws in the United States is built. The ADA, FHAA and ACAA expand on the C.F.R. to ensure access to anything not specifically covered under the Code of Federal Regulation, and state Service Dog laws clarify expectations even further. While it’s wordy and difficult to sort through, in general you may think of a Service Dog as Durable Medical Equipment, like a wheelchair.
This post is the first of a 5 part series that will delve into all of U.S. Service Dog law, including the ADA, FHAA, ACAA and state laws, so make sure you keep coming back!
All excerpts are from the U.S. Code of Federal Regulations § 36.202. For additional information, check out the brief provided by the ADA.