Peacocks in class? Not enough. What IHEs Need to Know About Service and Emotional Support Animals | Venable LLP

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The start of the new school year has arrived and the academic year has started for the majority of higher education establishments (IHE). In addition to 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 practice increasingly popular to have an emotional support animal (ESA) to help combat the growing mental health issues in IHE. Most IHEs will have policies in place limiting the presence of animals on campus, either in dorms or in campus facilities; however, many IHEs may find themselves faced with these potentially legitimate requests. Over the past few years, as reported in news reports by people claiming peacocks, kangaroos and, incredibly, a beehive – to name but a few examples – as indicated by emotional support animals, the presence of these animals can become quite disruptive if left unchecked. Therefore, it is important that IHEs are aware of the differences between service animals and ESAs and understand their legal obligations.

Service Animals and Emotional Support Animals: What’s the Difference?

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

Unlike service animals, ESAs have not been trained to perform a specific job; they provide comfort to their owners simply by being in physical proximity. ESAs are not regulated by 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 possession) . In order to qualify for the limited federal protection afforded to ESAs (discussed below), they must be accompanied by an ESA letter from a licensed mental health professional stating their purpose and the reasons for their need.

What accommodations should IHEs provide for owners and handlers of service animals and ESAs?

IHEs must modify their policies, practices, or procedures to allow the use of a service animal by any person with a disability, including students and employees; these animals are allowed in all areas where the owner or handler is allowed to go. However, there are a number of exceptions to this rule. A person with a disability may be asked to remove their service animal in certain circumstances. First, a service animal may be refused 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 displaying particularly dangerous behavior or having a history of such behavior. While some states and municipalities have “breed bans” for certain breeds of dogs, service animals should not be considered a “direct threat” simply by being of the prohibited breed, and IHEs in those locations must make exceptions for these service animals. Finally, the ADA permits the exclusion of a service animal when the nature of IHE’s goods, services, programs, or activities is “fundamentally altered.” Although most scenarios do not require fundamental modification, the ADA guidelines provide examples of service animals being restricted to specific areas of a dorm room for students with pet allergies or restricted to certain areas of a dorm. 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 reasons, the covered entity must still provide the person with a disability the opportunity to participate in the program, service or activity without the animal present. .

Requests for the use of a service animal should be handled largely in accordance with IHE’s Reasonable Accommodation Policy. However, note that when investigating a request for the use of a service animal, IHE employees can only ask two questions: (1) Is the dog a required service animal in due to a disability? and (2) What job or task was the dog trained for? The owner or handler of a service animal cannot be asked for proof of training or registration of their animal, or ask their animal to demonstrate its abilities. Also, the owner or handler of a service animal cannot be asked more specific questions about their disability.

Unlike service animals, ESAs are not protected by the ADA. They are, however, protected by the Fair Housing Act (FHA) and some state and local disability discrimination laws. FHA requires housing providers, including IHEs that provide on-campus housing, to make reasonable accommodations involving “service animals,” which are broadly defined and include animals that provide emotional support that mitigates one or more identified effects of a person’s disability. Reasonable accommodations involving service animals must be made when:

  • A request has been made to the housing provider by or for a person with a disability;
  • The request was supported by reliable information related to the disability, if the animal’s disability and disability-related need were not apparent and the accommodation provider requested this information; and
  • The housing provider has not demonstrated that:
    • Accepting the application would place an undue financial and administrative burden on the housing provider;
    • The application would fundamentally change the essential nature of the housing provider’s business;
    • The specific service animal in question would pose a direct threat to the health or safety of others despite any other reasonable accommodation 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 accommodation that could eliminate or reduce the physical damage.

It is important to note that under the FHA, IHEs have no obligation to permit ESAs in any other space on campus beyond student or faculty housing. Federal protections also require that individuals have first obtained prior approval through documentation of the individual’s disability and the animal’s need from a licensed mental health professional. When an ESA is not considered a commonly kept animal in households,2 the US Department of Housing and Urban Development (HUD) said the petitioner has a “substantial burden” to demonstrate the need for this particular type of animal.

Best Practices for IHEs

IHEs can better position themselves to deal with students and employees requesting the use of service animals and ESAs with the following:

  • Have a policy that expressly allows service animals as defined by the ADA.
  • Have a policy that states that ESAs are permitted at the discretion of IHE as a reasonable accommodation in on-campus housing for students or faculty with disabilities, and only with advance notice and approval. This policy should also reiterate that there is no requirement to allow ESAs elsewhere on campus (unless state or local law requires otherwise).
  • Reiterating in your policy that, as with any reasonable accommodation given to persons with disabilities, ESA accommodations in student accommodation cannot be unduly burdensome and may be subject to certain restrictions (for example, preventing a student from having an ESA that constitutes a direct threat to the health and safety of others).
  • Establish a procedure by which students and faculty can notify IHE of their needs and request to be accompanied by an animal on campus and clearly communicate this procedure to students and faculty prior to onboarding.
  • State the responsibilities that owners have on their service animals or ASE, for example, expenses incurred due to the animal beyond routine maintenance or cleaning costs.
  • Establish a voluntary registry of service animals and ESAs on campus.
  • Know any state or local laws that apply to your IHE that prohibit fraudulent misrepresentation of a dog as a service animal and highlight those laws in your policy. Some of these laws can impose stiff fines and possible jail time for such a violation.

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


[1] The ADA also requires covered entities to make “reasonable modifications” to permit the use of a miniature horse as a service animal. In determining whether reasonable modifications can be made, an entity must consider (i) the type, size and weight of the miniature horse and whether the facility can accommodate those characteristics, (ii) whether the handler has sufficient control miniature horse, (iii) whether the miniature horse is clean, and (iv) whether the presence of the miniature horse in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

[2] HUD defines it as “a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small domestic animal that is traditionally kept in the home for pleasure rather than only for commercial purposes”. The definition also provides restrictions:[f]For the purposes of this assessment, reptiles (other than turtles), barnyard animals, monkeys, kangaroos and other non-domestic animals are not considered common pets. »

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