The Final Regulations of the Americans with Disabilities Act defines a service animal as follows: 

A service animal is 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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler’s disability.

(emphasis added) 28 CFR § 35.104.

While the federal regulations limit service animals to dogs, 29 CFR § 35.136(i) requires that public entities make accommodations for miniature horses.  Arizona law is parallel to the federal law.  See A.R.S. § 11-1024.

It should be noted that animals that are pets or support animals are not considered service animals.  However, the Department of Justice has taken the position that support animals may be reasonable accommodations under other laws, including the Fair Housing Act and the Air Carrier Access Act. 75 Fed. Reg. 56,166 (2010).  Although, the regulations do not speak directly to support animals as a reasonable accommodation in the classroom, the Department of Justice may take that position based upon its current stance.

What Tasks Do Service Animals Perform?

Service animals can perform many tasks.  These can include:

  • Assisting individuals who are blind or have low vision with navigation and other tasks,
  • Alerting individuals who are deaf or hard of hearing to the presence of people or sounds,
  • Providing non-violent protection or rescue work,
  • Pulling a wheelchair,
  • Assisting an individual during a seizure,
  • Alerting individuals to the presence of allergens,
  • Retrieving items such as medicine or the telephone,
  • Providing physical support and assistance with balance and stability to individuals with mobility disabilities, and
  • Helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.

28 CFR § 35.104.

When Can a Service Animal Be Excluded from a Facility?

Under Arizona Revised Statute 11-1024, a service animal can be excluded from a public facility if one or more of the following apply:

(1) The animal poses a direct threat to the health or safety of others;

(2) The animal fundamentally alters the nature of the public place or goods, services or activities provided; or

(3) The animal poses an undue burden.

Further, the federal regulation, 28 CFR 35.136(b), allows a public entity to ask a person with a disability to remove a service animal “if the animal is out of control and the handler does not take effective action to control it; or the animal is not housebroken.”

What Questions Can I Ask Regarding a Service Animal?

Under federal law, a school is only permitted to ask two questions:  “(1) Is the service animal required because of a disability; and (2) What work or task has the service animal been trained to perform.”  The school is not permitted to ask about the nature of the individual’s disability.  Further, the school cannot require that the individual with a disability show proof that the animal has been certified, licensed, or trained as a service animal.  Additionally, if it is “readily apparent” that the animal is trained to perform tasks for its owner; the school cannot make inquiries regarding the service animal.  34 C.F.R. § 35.136(f).

What Responsibilities Do Schools Have Towards a Service Animal?

The care or supervision of a service animal is solely the responsibility of its owner.  A school is not required to provide care or food for the animal.  Notwithstanding, a federal court found that teaching the staff the few commands required to assist the student with his service animal was a reasonable accommodation.  C.C. v. Cypress School District, Case No. 8:11CV352-AG (C.D. Cal. June 2011).

What Happens if a Student or Teacher Has a Dog Allergy?

Unfortunately, there is not a clear answer to this question.  The regulations are clear that allergies are not a valid reason for excluding a service animal.  If a child with a service animal will be in the same classroom with a child or teacher with a dog allergy, the district is required to accommodate both students.  The district should request consent to speak to the child with the allergy’s physician to determine if any accommodations can be made.  Possible accommodations can include:

  •  Air filtration system in the classroom,
  • Seat the students on separate sides of the room (e.g., front-back, left-right), or
  • Change in classroom.

In September 2013, Athens City School District came to an agreement with a parent regarding the child’s use of a service dog at school.  The student’s special education had a significant dog allergy which required that the dog and the teacher not be in the same room.  The District proposed that the student attend a different school within the District.  However, the Parent objected citing the student’s difficulty with transition.  The District and the parent ultimately agreed that the student would attend a school operated by the Athens County Board of Developmental Disabilities, which is located next to her current elementary school.

Practical Tips:

  • Under federal law, school personnel are only permitted to ask two questions:
    • Is the service animal required because of a disability; and
    • What work or task has the service animal been trained to perform.
  • School personnel are not permitted to ask about the nature of the individual’s disability.
  • The care or supervision of a service animal is solely the responsibility of its owner. A school is not required to provide care or food for the animal.  However, training personnel to assist with the handling of the service animal may be considered a reasonable accommodation.
  • If there is a student with allergies to be considered:
    • Contact parents to determine severity of allergy, possibly permission to speak with student’s physician;
    • Determine if there are ways to alleviate the allergy exposure, such as air filters.
  • There is no law that dictates the outcome where one child requires a service animal, and another has allergies.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Heather R. Pierson at  480.461.5384, log on to udallshumway.com, or contact an attorney in your area.