United States: Peacocks In Class? Not Quite. What IHEs Need To Know About Service And Emotional Support Animals

Fall has arrived and the academic year has kicked off for a majority of institutions of higher education (IHEs). In addition to the normal considerations for onboarding new students and faculty, IHEs will likely encounter individuals who wish to bring pets and other animals to campus with them as service animals, or the increasingly popular practice of having an Emotional Support Animal (ESA) to help combat the growing mental health concerns at IHEs. Most IHEs will have policies in place limiting the presence of animals on campus either in dormitories or on-campus facilities; however, many IHEs may find themselves confronted with these potentially legitimate requests. As news reports over the past several years of people claiming peacocks, kangaroos, and, incredibly, a beehive—to name just a few examples—as emotional support animals have indicated, the presence of these animals can become quite disruptive if left unchecked. Accordingly, it is important for IHEs to be aware of the differences between Service Animals and ESAs and understand their legal obligations.

Service Animals and Emotional Support Animals: What is the difference?

Under the Americans with Disabilities Act (ADA), "Service Animals" are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work include guiding a person who is blind, alerting a person who is deaf, and alerting and protecting a person who is having a seizure. Although the ADA generally limits Service Animals to dogs, there is a specific exception that also allows for the use of miniature horses under certain circumstances. Additionally, while Service Animals are subject to any local dog licensing and registration requirements generally, mandatory registration of these animals as Service Animals is not permitted under the ADA. Voluntary registries may be created, however, in order to, for example, alert emergency responders to the presence of a Service Animal. It is also important to note that several states have their own laws on Service Animals, some of which define Service Animal more broadly than the ADA.

Unlike Service Animals, ESAs have not been trained to do any specific job; they provide comfort to their owners simply by being in close physical proximity. ESAs are not regulated under the ADA, and an individual can claim any animal as an ESA (except, of course, animals for which there are state or federal restrictions on possessing). In order to qualify under the limited federal protection afforded to ESAs (elaborated below), they must be accompanied by an ESA letter from a licensed mental health professional stating their purpose and reasons for their necessity.

What accommodations must IHEs provide for owners and handlers of Service Animals and ESAs?

IHEs must modify their policies, practices, or procedures to permit the use of a Service Animal by any individual with a disability, including both students and employees; these animals are allowed in any area where the owner or handler is allowed to go. There are, however, a number of exceptions to this rule. A person with a disability can be asked to remove their Service Animal under certain circumstances. First, a Service Animal can be denied if the dog is out of control and the handler does not take effective action to control it or if the animal is not housebroken.¹ A Service Animal may also be excluded or removed if that Service Animal poses a direct threat to the health and safety of others by exhibiting particularly dangerous behavior or having a history of such behavior. While some states and municipalities have "breed bans" for certain breeds of dog, Service Animals are not to be considered a "direct threat" simply by being of the prohibited breed, and IHEs in those locations must make exceptions for those Service Animals. Last, the ADA allows for a Service Animal to be excluded where the nature of the goods, services, programs, or activities of the IHE are "fundamentally altered." While most scenarios would not require a fundamental alteration, ADA guidance gives examples of Service Animals being restricted from specific areas of a dormitory reserved for students with pet allergies or being restricted from certain areas of a zoo where animals that are natural predators or prey of dogs would become particularly agitated or aggressive. If a Service Animal is excluded or removed for any of the above-mentioned reasons, the covered entity must still give the individual with the disability the opportunity to participate in the program, service, or activity without the animal present.

Requests for use of a Service Animal should largely be handled in a manner consistent with the IHE's reasonable accommodation policy. However, note that when inquiring into a request for use of a Service Animal, the IHE's employees can ask only two questions: (1) Is the dog a Service Animal required because of a disability? and (2) What work or task has the dog been trained to perform? The owner or handler of a Service Animal cannot be asked for proof of training or registration for their animal, or asked that their animal demonstrate its abilities. Furthermore, the owner or handler of a Service Animal cannot be asked more specific questions about their disability.

Unlike Service Animals, ESAs are not protected under the ADA. They are protected, however, under the Fair Housing Act (FHA) and some state and local disability discrimination laws. The FHA requires housing providers, which includes IHEs that provide on-campus housing, to make reasonable accommodations involving "assistance animals," which are broadly defined and include animals that provide emotional support that alleviates one or more identified effects of a person's disability. Reasonable accommodations involving assistance animals must be made where:

• A request was made to the housing provider by or for a person with a disability;
• The request was supported by reliable disability-related information, if the disability and the disability-related need for the animal were not apparent and the housing provider requested such information; and
• The housing provider has not demonstrated that:
  • Granting the request would impose an undue financial and administrative burden on the housing provider;
  • The request would fundamentally alter the essential nature of the housing provider's operations;
  • The specific assistance animal in question would pose a direct threat to the health or safety of others despite any other reasonable accommodations that could eliminate or reduce the threat; and
  • The request would not result in significant physical damage to the property of others despite any other reasonable accommodations that could eliminate or reduce the physical damage.

Importantly, under the FHA, IHEs are under no obligation to allow ESAs in any other space on campus beyond the students' or faculty's own housing. The federal protections also require that individuals must have first attained prior approval via documentation of the individual's disability and need for the animal from a licensed mental health professional. Where an ESA is not considered an animal commonly kept in households,² the U.S. Department of Housing and Urban Development (HUD) has stated that the requesting party has a "substantial burden" in demonstrating the need for that particular type of animal.

Best Practices for IHEs

IHEs can best position themselves to deal with students and employees requesting the use of Service Animals and ESAs with the following:

• Having a policy that expressly permits Service Animals as defined by the ADA.
• Having a policy that states that ESAs are permitted within the discretion of the IHE as a reasonable accommodation in on-campus housing to students or faculty with disabilities, and only with prior notice and approval. This policy should also reiterate that there is no obligation to allow ESAs elsewhere on campus (unless otherwise required by state or local law).
• Reiterating in your policy that, as with any reasonable disability accommodation granted, ESA accommodations in student housing cannot be unduly burdensome and may have certain restrictions attached (e.g., restricting a student from having an ESA that poses a direct threat to the health and safety of others).
• Setting forth a procedure by which students and faculty can notify the IHE of their needs and apply to have an animal accompany them on campus and relaying that procedure clearly to students and faculty before onboarding.
• Setting forth the responsibilities that owners have over their Service Animals or ESAs, for example, expenses incurred due to the animal beyond routine maintenance or cleaning fees.
• Establishing a voluntary registry of Service Animals and ESAs on campus.
• Being familiar with any state or local laws that apply to your IHE that prohibit the fraudulent misrepresentation of a dog as a Service Animal and highlight those laws in your policy. Some such laws may impose harsh fines and possible jail time for any such violation.

Should your IHE have any additional questions or require guidance on crafting policies to best retain the right to limit animals on campus while remaining in compliance with federal, state, and local law, please contact the authors of this article or any other member of Venable's Higher Education or Labor and Employment practice groups.

* The authors of this article thank Alex Clementi, law clerk, for his assistance in its preparation.