There was a flurry of comment recently among the community of disability lawyers when a legal blogger posted a story about a pig allowed on an airplane with disastrous results. The story was interesting, but what caught the attention of those who practice in the field of disability law was his error in the law that applied. He said it was a story about ADA service animals, when in fact, as experts know, the issue was one under the Air Carrier Access Act.
I can’t blame him, or anyone else, for being confused. Even putting aside the dozens of state disability rights laws and the hundreds or thousands of municipal ordinances there are still a confusing array of federal laws and standards that might apply to any given business, and the rules about animals are particularly likely to cause confusion. Here is the briefest of explanations about where you and your business stand.
Let’s start with “public accommodations,” which are really any businesses that serve consumers and don’t provide long term housing.* Public accommodations are subject to regulations under the Americans With Disabilities Act, which is usually called the ADA. Of course it was substantially amended in 2008, and some experts now refer to the ADAA. If you own a public accommodation the rules about animals are relatively simple. The ADA requires that you accommodate disabled customers with “service animals.” “Service animals” are always dogs or (soon) miniature horses. If any other kind of animal comes in you can enforce a “no pets” policy without fear.
The next most common kind of businesses faced with disability access issues are those providing multi-family housing. These businesses are governed by the Fair Housing Act, or FHA. Be careful though. While we usually think of apartments when we think of multi-family housing the FHA also covers condominiums, townhouses and facilities operated by the homeowners association in neighborhoods with ordinary single family housing. If you just got elected to the HOA board of your gated community you probably need to know about the FHA.
The FHA regulations are the most difficult when it comes to animals because the department of Housing and Urban Development, which issues regulations under the FHA, has decided that the “service animal” definition under the ADA is too restrictive. The FHA regulations require that a provider of multi-family housing accommodate disabled persons who rely on “assistance animals,” which includes “therapy animals” prescribed for emotional support. Aardvark? Anaconda? Armadillo? Zebra? From A to Z it doesn’t matter. If a disabled person claims their animal provides emotional support you have to accommodate it in some way. Although HUD usually refers to “animals” their interpretation of the FHA is so broad that it could also include fish, insects, and bacteria. Count yourself lucky if the problem isn’t more complicated than a pig or monkey.
Airlines are a special case. Instead of the ADA they are governed by the Air Carrier Access Act. In order to maximize the possible confusion the Department of Transportation uses the term “service animal” to refer to all animals that help those with disabilities, including emotional support animals. If you are an airline you need to know that the word “service animal” in your regulations doesn’t mean the same thing as it does in regulations under the ADA. By the way, the ACAA also covers airports. Adding to the confusion here is the regulation that says airports comply with the ACAA if they meet the regulations promulgated by the Department of Justice under the ADA. Since the DOJ and DOT don’t agree on what constitutes a service animal the issue may be difficult for airport operators.**
If you need more information, you can check out the helpful publication from the Justice Department, “A Guide to Disability Rights Laws.” It is only 23 pages long including statutory references, and helpfully suggests that to “find out more about how these laws may apply to you, contact the agencies and organizations” listed in the brochure. You’ll be busy with your calls because there are ten different federal laws concerning disability access and eleven separate agencies are listed as sources of information. The ADA alone falls under the jurisdiction of 10 different federal agencies.
I hate lawyer blogs that end with something like “call a lawyer like me,” but I can’t suggest any other solution for a business that is worried about animals and their policies about pets. And for those in the disabilities rights community it is worth remembering that confusion about the law is one of the most significant barriers to access for those with disabilities.
*Warning — there are unresolved issues about what is temporary housing and what law might apply. If you aren’t sure about your business you need a lawyer. If you are sure you probably still need a lawyer.
**Second Warning — it is possible that somewhere in the vast world of federal regulations and guidance this issue has been resolved for airport operators. I have not found it. One of my followers will certainly let me know.