Service Animals Gone Wild

February 15, 2018

An interesting legal discussion surrounding the scope of what is and should be considered a service animal seems to be making its way to the forefront of the news, in light of recent news articles discussing airlines refusing the allow specific emotional support animals aboard aircrafts. Issues surrounding the definition of “support animal” permeate different areas of law including: travel, labor, and employment law, especially with regards to the  Americans with Disabilities Act and state-specific disability laws, and the Fair Housing Act


This year airlines have seen an increase in the number of passengers with emotional support animals. Notably, a passenger recently attempted to board a plane with an emotional support peacock. Similiarly, an emotional support hamster was denied access with its owner, and faced a tragic end.  14 C.F.R. 382.117 regulates whether carriers must permit passengers with a disability to travel with service animals.  In light of these recent news articles discussing more exotic and unusual psychiatric service animals, subsection (f) is relevant:

“You are never required to accommodate certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) as service animals in the cabin. With respect to all other animals, including unusual or exotic animals that are presented as service animals (e.g., miniature horses, pigs, monkeys), as a carrier you must determine whether any factors preclude their traveling in the cabin as service animals (e.g., whether the animal is too large or heavy to be accommodated in the cabin, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight’s destination). If no such factors preclude the animal from traveling in the cabin, you must permit it to do so. However, as a foreign carrier, you are not required to carry service animals other than dogs.”

Additionally, the Air Carrier Access Act, requires carriers to permit a service animal to accompany a passenger with a disability.

Labor and Employment

The American with Disabilities Act (see 42 USCA 12101 et seq and applicable regulations) defines “service animal” as “any guide dog, or other animal 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” 26 C.F.R. 36.104.

In 2011, the Department of Justice promulgated a final rule of Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities that narrowed the definition of service animal to:

“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. Examples of work or tasks include, but are not limited to, 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. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”

Recent case law in the labor and employment context seems to provide consistent analysis in determining the reasonableness of allowing a service animal as a reasonable accommodation:

“Employer’s failure to approve employee’s request to have his service dog accompany him to work as an accommodation for his post-traumatic stress disorder (PTSD) did not amount to a constructive discharge under ADA and Michigan Persons with Disabilities Civil Rights Act (PWDCRA), where employer participated in interactive process on employee’s request, and employee resigned before employer had made a decision.”

Nevertheless, the request for emotional support animals to be present, not only while traveling but also while at work and home, is becoming more prevalent and, tracking these developments in light of societal changes and demands will be interesting and even necessary for some attorneys.


The Fair Housing Act (see, 42 USCA 3601 to 3619), does not define the term “service animal”, however, using the A.D.A. definition quoted above, has been found to be appropriate in some instances. For example, the U.S. District Court for D. Hawai’I (1, 2) used the A.D.A. definition of “service animal” and found that a waiver of a no-pet rule to allow a disabled residence the assistance of a service animal is a reasonable accommodation provided the animal alleviates the disability. See, Ass’n of Apartment Owners of Liliuokalani Gardens at Waikiki v. Taylor, 892 F. Supp. 2d 1268, 1271 (D. Haw. 2012) and Prindable v. Ass’n of Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245, 1258 (D. Haw. 2003), aff’d sub nom. Dubois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006).

Some jurisdictions have concluded that the Fair Housing Act “encompasses all types of assistance animals regardless of training, including those that ameliorate a physical disability and those that ameliorate a mental disability.” Fair Housing Act, § 804(f)(1, 2), 42 U.S.C.A. § 3604(f)(1, 2). Fair Hous. of the Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc., 778 F. Supp. 2d 1028 (D.N.D. 2011). While others have held “Palliative care and the ordinary comfort of a pet are not sufficient to justify a request for a service animal under the Federal Fair Housing Act (FFHA) and the West Virginia Fair Housing Act (WVFHA).” Civil Rights Act of 1968, §§ 801-901, as amended, 42 U.S.C.A. §§ 3601-3631; Code, 5-11a-1 to 5-11a-20. In re Kenna Homes Co-op. Corp., 210 W. Va. 380, 557 S.E.2d 787 (2001). See also, § 14:48.What accommodations are reasonable—Waiver of no-pet rule, 4 Americans with Disab.: Pract. & Compliance Manual § 14:48.

Watching how housing cases develop with regard to making exceptions to no-pet policies will be interesting as states continue to interpret what constitutes a reasonable accommodation.


Some states have proposed legislation and regulations also discussing and defining support or service animal in some way or another before their respective legislatures this year. For example, Mississippi, has this language in its House Bill titled MS Support Animal Act:

“The term ‘support animal’ includes service animals, guide animals, seeing-eye animals, hearing-ear animals, therapeutic animals, comfort animals and facility animals. However, the term ‘support animal’ does not mean an animal considered a pet, and is limited to a dog or miniature horse.”

And, Washington, in its House Bill concerning service animals, amended its definition to define “service animal” as any dog (instead of an animal) “that is individually trained to do work or perform tasks for the benefit of an individual with a disability…”

The proposed and adopted legislation and regulations encompassing definitions of support animals will be interesting to watch this year as more and more people seek to broaden the scope of what is considered an emotional support animal.

Image source: REUTERS

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