Trends 2013-2016

A list of monthly Trends articles for August 2013 through October 2016 has been compiled.  See full article archive.


Service Animals and the Courts

Deborah Smith, Senior Knowledge and Information Services Analyst, National Center for State Courts

   

The Americans with Disabilities Act provides for the use of service animals, but not “emotional-support” animals. What provisions must courts make when members of the public or employees request to bring a service or emotional-support animal to court?

Access and Service Animals

The right of access to the courts falls under the Title II Public Services Section A of the Americans with Disabilities Act (ADA). Title II of the ADA also ensures that the earlier nondiscrimination requirements of Section 504 of the Rehabilitation Act of 1973, which applied to public entities receiving federal financial assistance, now apply to all state public entities, including courts. States are not immune from lawsuits under Title II and may also have disability-rights legislation or court rules that are broader than Title II. 

The final ADA Title II revised regulations went into effect in March 2011. These regulations permit service animals. Most states also have regulations that apply to service animals. If state laws or regulations are broader than the ADA, those would also apply, but state regulations cannot place limits on ADA regulations. Under the ADA, service animals are defined as “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” (28 CFR 35.104 Definitions). While only dogs are included under the definition, a special provision makes an exception for miniature horses in certain cases (28 CFR 35.136 (i)). Under Department of Justice (DOJ) regulations, public entities can only ask two questions—“if the animal is required because of a disability and what work or task the animal has been trained to perform.” The entity cannot ask about the “nature or extent of a person’s disability” (28 C.F.R. § 36.302(c)(6)).

The ADA does not allow for emotional-support animals. Emotional-support animals that are used just for psychiatric support are different from a service animal, which helps “persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors” (28 CFR 35.104 Definitions). So, while a comfort dog that only provides emotional support is not allowed under the ADA, an animal that has been trained to perform specific tasks, including preventing epileptic seizures or interrupting behaviors that the individual has trouble controlling, is allowed. Examples of alert training might include nudging the person or walking around the person in a circle. However, even if an animal qualifies as a service animal, a public entity can ask them to leave if the animal is not housebroken or is out of control (28 C.F.R. §35.136).

A broader definition that includes assistance animals used for emotional support is applied to Section 504, the Fair Housing Act (FHA), and the Air Carrier Access Act (ACAA). Courts that receive federal funding are covered by both the ADA and Section 504, but the broader definition has only been applied in housing cases.

The DOJ has released FAQs about “Service Animals and the ADA,” which explain the difference between an emotional-support animal and a service animal. If someone is having an anxiety attack, and the animal helps to calm them, that is an emotional-support animal and not covered by the ADA. If the animal has been trained to sense that an attack is imminent and can take an action to help avoid or reduce the attack, then the animal qualifies as a service animal. Since the public entity can only ask if the animal is required because of a disability and what the animal has been trained to do, this may be a difficult determination for a frontline court employee. Service animals do not have to be trained by a professional, so the individual with the disability may have trained their own service animal. The ADA does not cover service animals that are still being trained; however, some states provide coverage under state statutes. Staff may not ask for certification, and the animal is not required to wear special tags, vests, or harnesses.

DOJ regulations once limited service-animal species to dogs that were individually trained to perform work for persons with disabilities, but the final revised regulations include a special provision for miniature horses. Many advocacy organizations provided input on why to include miniature horses—for example, severe allergies to dogs, fear of dogs, longevity (miniature horses can live 30 years), strength (horses can pull a wheel chair), sharp eyesight, and calm nature. Miniature horses are about the size of a large dog and have been used in other venues, such as schools. Four factors are used to determine if a miniature horse must be accommodated (28 CFR 35.136 Service Animals): 1) Is the animal housebroken? 2) Is the animal under the owner’s control? 3) Can the facility accommodate the type, size, and weight (usually 70-100 pounds, similar to a large dog)? 4) Is there a legitimate public safety concern?

Emotional-support or therapy animals are used in several courts in California, Colorado, Florida, Maryland, Michigan, Pennsylvania, and Washington State. Statutory authority exists in some but not all of these states. Typically, these programs are started by the prosecuting attorney’s office to provide support for child witnesses who have been traumatized. Veterans courts have also begun to recognize the therapeutic benefits of emotional-support animals. Courts that allow or even encourage the use of emotional-support/therapy dogs for the benefit of victims or litigants are not dealing with ADA or Section 504 issues.

Service Animals and Court Employment (Title I)

Title I of the ADA covers all court employment practices, including application, promotion, testing, medical examinations, hiring assignments, layoff/recall, evaluation, termination, disciplinary actions, compensation, training, and leave/benefits. Title I does not define “service animal.” The miniature-horse exception only specifically applies to Titles II and III. Under Title I, an employee can request to bring a service animal as a reasonable accommodation. This leaves open the possibility that an emotional-support animal could be considered a reasonable accommodation. The analysis goes back to whether the employee has a disability (which is to be construed broadly). The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and the Equal Employment Office Commission Regulations define a disability using a three-pronged approach:

  • a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”);
  • a record of a physical or mental impairment that substantially limited a major life activity (“record of”); or
  • when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”) (29 CFR, Section 1630.2(g)).

If an employee is only covered under the “regarded as” part of the definition, the employee cannot request a reasonable accommodation. This third prong applies to other aspects of the employment relationship, such as hiring, promoting, harassment, or firing.If an employee has a disability under the first or second prong of the definition, he or she may request a service animal as a reasonable accommodation. This does not preclude the employee from asking for an emotional-support animal as a reasonable accommodation. Employers are not automatically required to allow the request for a service animal if the animal is not needed or if the animal causes a disruption in the workplace. The employer can request reasonable documentation that the accommodation is needed. This documentation does not necessarily have to come from a doctor. The employee must show the need for the accommodation, that the animal is trained to provide the needed assistance, and that the animal will not disrupt the workplace. The service animal may be necessary to assist with a medical problem, such as diabetes or epilepsy. This is the employee’s personal decision, so the employer must accommodate this medical assistance unless the employer can show an undue hardship. Because Title I does not define “service animal,” the employer must review a request for a service animal or emotional-support animal in the same way as any other reasonable accommodation for an employee. This could mean that more types or breeds of animals are included under Title I.

Conclusion

Animals can come in contact with courthouses under several different scenarios. Someone may be a witness, a litigant, or an attorney in a court case or may be entering the court to file paperwork. If the person has a disability and the animal is a dog (or, in some situations, a miniature horse) that has been trained to assist the person with specific tasks that address the disability, then the public entity must permit the person to be accompanied by the service animal under Title II of the ADA. Animals that are not housebroken or are out of control may be excluded. Court employees, including judges, may request bringing an animal to work with them as a reasonable accommodation under Title I of the ADA. These requests are treated as any other request for a reasonable accommodation and must be allowed if the animal is needed by the employee, has been trained, and does not disrupt the workplace. The reasonable accommodation under Title I may include animals that are not included under the “service animal” definition of Title II. Some courts may allow programs that provide emotional-support animals to help calm child victims while they testify. These animals are provided as a service by the court and are not covered by the ADA or Section 504.


Reports are part of the National Center for State Courts' "Report on Trends in State Courts" and "Future Trends in State Courts" series.
Opinions herein are those of the authors, not necessarily of the National Center for State Courts.