Beginning on March 15, 2011, the Department of Justice’s new regulations implementing Title III of the Americans with Disabilities Act “ADA” (public accommodations) will take effect, and drastically curtail the current use of service animals by disabled individuals. By way of background, the 1991 enactment of the ADA required that places of public accommodation (restaurants, hotels, retail stores etc…) permit the use of a service animal by an individual with a disability. In a nutshell, any establishment that ordinarily would not permit pets or other animals is required by the ADA to permit service animals accompanying disabled individuals to enter. At the time, this provision contemplated commonplace, highly trained service animals such as “seeing-eye” dogs assisting sight-impaired individuals. Over time, however, a variety of species have come to be known as “service animals” by their owners, including snakes, lizards, rodents, birds, monkeys and pigs. Moreover, these less conventional service animals began being certified by owners and treating medical practitioners to perform “services” beyond specific work or tasks designed to assist the disabled individual in performing tasks. Indeed, it is becoming more and more common to see these animals on airplanes, in restaurants and in shops, because they provide their owners emotional comfort.
Starting March 15th, however, it is highly unlikely that we will see further examples of the broad implementation of the ADA’s service animal provision. Contrary to the former regulations, these new regulations are intended to narrowly define the type of service animal that requires public accommodation. First, the new rule limits service animals to dogs (with a limited exception noted below). A “service animal” is defined as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. Other animals, whether wild or domestic, simply do not qualify as service animals.
Second, dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, will not qualify as service animals under the new regulations. Under the new regulations, a service dog must perform tasks that are directly related to an individual’s disability. Specific examples of work or tasks to be performed by a service animal include:
a. Assisting sight-impaired persons with navigation or other tasks;
b. Alerting hearing-impaired persons to the presence of people or sounds;
c. Providing nonviolent protection or rescue work;
d. Pulling a wheelchair;
e. Assisting an individual during a seizure;
f. Alerting an individual to the presence of allergens;
g. Retrieving items such as medicine or the telephone;
i. Helping persons with psychiatric and neurological disabilities by preventing or interrupting
impulsive or destructive behaviors.
Interestingly, in response to numerous comments during the preliminary rule-making phase, the regulations were expanded to permit the use of miniature horses as alternatives to dogs, subject to certain limitations dealing with the obvious distinctions between dogs and horses (flexibility, size, etc…). The Department noted that, while the traditional service animal is a dog, beginning in 1991, miniature horses have been trained in a program highly similar to that of guide dogs. Thus, if a miniature horse has been trained to do work or perform tasks for the benefit of an individual with a disability, the regulations will permit accommodation. Alas, ponies and full sized horses are not qualified under the new regulations, nor are monkeys or snakes for that matter….