[NFBMT] Service animals and Montana law

[Bruce&Joy Breslauer]

disability Rights Montana  

Fact Sheet Regarding Service Animals – September, 2011 

 

The Montana Human Rights Act and other state law, the federal Americans with Disabilities Act,

the federal Fair Housing Act, and the 1973 Rehabilitation Act protect the right of persons with

disabilities to use service animals to aid them in various settings.

MONTANA LAW

Montana law does not limit the definition of service animals to dogs.  It broadly defines a

service animal as any animal that performs a task or service to a person with a disability or is in

training to perform that task or service.  Mont. Code Ann. § 49‐4‐203(2).  A person that is a

qualified person with a disability has a right to use his or her service animal in public

accommodations, in public transportation, and housing governed by the Montana Human

Rights Act.  The ultimate scope of this right is unclear.  However, it would be prudent to assume

that this right would be subject to limitation if a handler does not keep the animal under

control, clean up after the animal, or otherwise prevent damage or disruption by the animal.   

In other situations governed by the Montana Human Rights Act such as employment and public

services, use of service animals would need to qualify under the legal definition of a reasonable

accommodation.  To be entitled to use this reasonable accommodation, the individual must be

a qualified person with a disability.

To be reasonable, the accommodation of using a service animal in employment must not pose

an undue burden on an employer or require the employer to fundamentally alter the

employment situation.  It cannot pose a risk to the health or safety of the person with a

disability or to other persons or to property.  For this reason, a service animal may be ejected if

it is aggressive, disruptive, or causes damage.   General concerns about allergies or fear of

animals are not valid reasons for denying access or refusing services to people with service

animals.

Under Montana law, no distinction is made between service animals that provide support for

persons with mobility impairments, sensory impairments, or cognitive or psychiatric

impairments.  All are entitled to the same legal protections.  

FEDERAL LAW

The regulations interpreting the ADA provide that only dogs may be service animals.  This

definition applies to public accommodations and public services.   In these regulations, a service

animal is defined as a 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 purposes of this definition. 28 C.F.R. 35.104.  Dogs that are not trained to

perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional

support, ARE NOT service animals.

House broken miniature horses also may be used as service animals under the regulations, but

their use is much more limited than service dogs.  As with dogs, the miniature horse must be

“individually trained to do work or perform tasks for the benefit of the individual with a

disability.”   The only entities that are required to modify their policies to accommodate these

animals are public entities.  Public entities are allowed to consider “the type, size, and weight of

the miniature horse and whether the facility can accommodate these features; . . . and

whether the miniature horse’s presence in a specific facility compromises legitimate

safety requirements that are necessary for safe operation.”

Service dogs that meet the federal definition are not treated as reasonable accommodations in

public accommodations or public services.  They are afforded more protection and thus can

only be barred from public accommodations when the animal is out of control and its handler

has taken no steps to address this.  However, even where a service animal is ejected or barred,

an individual with a disability must still be offered the service or other benefit without the

service animal.

The Fair Housing Act and the Rehabilitation Act of 1973 do not define service animals.  For that

reason, the Department of Housing and Urban Development has determined that in housing

situations governed by these federal laws, animals other than service dogs would be entitled to protection if they met the definition of a reasonable accommodation.  

http://www.bazelon.org/LinkClick.aspx?fileticket=lhyaA_hRAoE%3dtabid=268.  

 

Thus a tenant with a disability could be entitled to have an emotional support animal if the tenant can prove a

relationship between his or her ability to function and the companionship of the animal sufficient to

establish the animal as a reasonable accommodation.

Like the Montana definition, the federal definition of service dogs makes no distinction

between those that provide support for persons with mobility impairments, sensory

impairments or cognitive or psychiatric impairments.

Given that Montana law and Federal law differ in some ways, the following Commonly Asked

Questions will be answered primarily with regard to Montana law:

1.   What are some examples of tasks a service animal can perform?  

1.

The work or tasks performed by a service animal can include:

 assisting individuals who are blind or have low vision with navigation and other

tasks,  

 assisting individuals who are deaf or hard of hearing to the presence of people or

sounds, providing individuals non‐violent protection or rescue work,

 opening doors for a person in a wheelchair,

 assisting an individual during a seizure,

 alerting individuals to the presence of allergens,  

 providing physical support and assistance with balance and stability, 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 provisions of emotional

support, well‐being, comfort or companionship do not constitute work or tasks for the

purposes of the federal definition of service dog.  28 C.F.R.  35.104.   

2. Is a service animal required to be certified or pass a course to be considered a service

animal?

In Montana, there currently is no state certification or training process for service

animals.  The law does require that the service animal be trained to perform particular

tasks specific to the individual’s disability to qualify as a service animal.   

The Montana Human Rights Act requires that a dog that is being trained as a service

animal must wear a leash, collar, cape, harness, or backpack that identifies the animal as

in training that is visible and legible from a distance of at least 20 feet. Mont. Code Ann.

§ 49‐4‐214(4).

The Act does not require that trained service animals be similarly vested, however, such

identification can help avoid misunderstandings and access obstacles for the person

with the disability.  We strongly advise individuals to consider identifying their service

animal in this manner.

Federal law does not require a specific certification for service dogs.  However, a dog

must meet the definition of service dog provided above in the federal law section to

qualify.  Examples of trained dogs that would satisfy the regulation are:  

 Dog Guide, or Seeing Eye Dog ‐ a dog that serves as a travel tool for persons with severe visual

impairments or who are blind.  

 Hearing, or Signal Dog ‐ a dog that has been trained to alert a person with significant hearing

loss or who is deaf when a sound occurs.

 Psychiatric Service Dog – a dog trained to perform a variety of tasks that assist individuals with

disabilities to detect the onset of psychiatric episodes and ameliorate the effects of those

episodes. Tasks performed by psychiatric service animals may include reminding the handler to

take medicine; providing safety checks, or room searches, or turning on lights for persons with

Post Traumatic Stress Disorder; interrupting self‐mutilation by persons with dissociative identity

disorders; and keeping disoriented individuals from danger.

 SsigDog ‐ a dog trained to assist a person with autism. The dog alerts the handler to distracting

repetitive movements common among those with autism, allowing the person to stop the

movement (e.g., hand flapping).

 

 Seizure Response Dog ‐ a dog trained to assist a person with a seizure disorder. How the dog

serves the person depends on the person's needs. The dog may stand guard over the person

during a seizure, or the dog may go for help. A few dogs have learned to predict a seizure and

warn the person in advance.

3. What documentation or information should I provide to an employer to support my

request to use a service animal at work?

You should provide an employer an explanation of what service or task the service

animal performs to demonstrate why the animal is needed in the workplace.  If your

employer is not already aware of your disability, you should provide the employer

information from your physician that establishes that your disability substantially limits

the way you conduct major life activities and that your service animal performs a task or

service that helps you compensate for your disability.  Your employer is not entitled to

review your entire medical record, but is entitled to enough information to determine

whether you are a qualified person with a disability.   For more information regarding

your rights at various stages of employment, see DRM Employment Discrimination fact

sheet at:

http://disabilityrightsmt.org/janda/articles/UploadFile/1278446886_Fact-Sheet-Employment-Discrimination-July-2010.pdf

4. Can an employer deny an employee’s use of a service animal in the workplace because

other employees are allergic, environmentally sensitive or fearful?

The employer is required to prove that providing the accommodation would prove an

undue hardship, require a fundamental alteration of the business or pose a threat to the

health or safety of the person with the disability, others or property.  To demonstrate

that an accommodation establishes such a threat, an employer must “independently

assess whether the accommodation would create a reasonable probability of substantial

harm.”  ARM  24.9.606 (7).   As such, a general concern about safety or health is not

sufficient.  There are numerous accommodations and alternatives that can be discussed

between the employer and employee for these situations to mitigate or entirely

eliminate such concerns.  (See Job Accommodation Network webpage, http://askjan.org  “Service Animals as Workplace Accommodations.) 

 

 

5. Can an employer reduce pay or require an employee to use leave to care for a service

animal in the workplace?

When an employee submits a request for reasonable accommodation, that request

should also include using break and lunch time to allow the service animal to relieve

itself and for the employee to otherwise care for the animal.  If the employer denies this

accommodation, the employer must continue to engage in the interactive process to

establish an accommodation that would be reasonable.  The employer may not reject a

service animal or the necessary accommodations to have a service animal at work,

including bathroom breaks, unless it would be an undue hardship, require a

fundamental alteration in the business or pose a risk to the health or safety of the

individual, others or property.

6. Am I responsible for cleaning up after my service animal?

Yes.  A service animal handler is responsible for cleaning up after his or her service

animal.  This includes when the animal is assisting in public, and in housing and

employment situations.

7. Is it best to let my landlord know that I have a service animal before I move in?   

Yes.  It is best to talk with the landlord about the service animal prior to moving in.  An

individual with a disability has a right to have a service animal in housing governed by

the Montana Human Rights Act, so it is best to avoid any misunderstandings by having

an upfront conversation about what the animal does to perform tasks and meet the

definition of a service animal.  Remember, part of establishing that an animal is a service

animal includes establishing that you are a qualified person with a disability under state

law.  To do so, you can provide information from your physician or therapist establishing

that the service animal performs a task or service that meets a need you have because

of your disability.  You should give enough information to the landlord to establish your

need for the service animal, but you are not obligated to disclose details of your

disability or your medical records.  

 

If your animal is not a service animal but an emotional support animal, you should also

discuss this issue with your landlord upfront.  In Montana, to have an emotional support

animal in a rental property governed by the Montana Human Rights Act, you must establish that

it is a reasonable accommodation.  It is best to request this reasonable accommodation in

writing, from the landlord, manager or other appropriate authority. The request should state

that you have a disability and explain how the requested accommodation will be helpful to

address needs you have because of your disability. In addition, you should include a note from

your service provider, such as a doctor or therapist, verifying the need for the support animal to

address your needs because of your disability.  You do need to provide enough information to

demonstrate that you are a qualified person with a disability and that the animal is a reasonable

accommodation, but you need not disclose the details of your disability, nor provide a detailed

medical history.

8. Can a landlord require me to pay a deposit just for my service animal?

Pursuant to Montana law, a person with a disability who has a service animal or who obtains

a service animal may not be required to pay extra compensation to a landlord for the service

animal in housing governed by the Montana Human Rights Act.  Mont. Code Ann. § 49‐4‐

214(2). Individuals are liable for any damage done to the premises by a service animal.  

Id.

Landlords of federally assisted housing for the elderly or persons with disabilities are

prohibited from charging a deposit for service animals.  According to the Department of

Housing and Urban Development’s internal regulations, service animals are exempt

from “no pets” policies and from required pet security deposits. Occupancy Requirements

of Subsidized Multifamily Housing Programs, HUD, No. 4350.3, 4‐13(b) (1998).   

For those tenants who are not protected by the Housing and Urban‐Rural Recovery Act, at least

one administrative law judge has similarly found that these landlords cannot charge a tenant a

deposit for a service dog.

If a person with a disability can establish that an emotional support animal is a

reasonable accommodation, an argument can be made under federal law that it should

be exempted from a pet deposit, as landlords are required to make reasonable accommodations as long as any costs to do so are not an undue financial burden. See United

States v. California Mobile Home Park Management Co., 29 F.3d 1413, 1416 (9th Cir. 1994).  

Similarly Montana law provides that the “refusal to make reasonable accommodations in rules,

policies, practices, or services when the accommodations may be necessary to allow the person

equal opportunity to use and enjoy a housing accommodation or property” is evidence of

housing discrimination on the basis of disability.   Mont. Code Ann. § 49‐2‐305(5)(b).

 

Joy Breslauer, President

National Federation of the Blind of Montana 

Web Site: http://www.nfbofmt.org <http://www.nfbofmt.org/> 

 

Live the life you want

 

The National Federation of the Blind knows that blindness is not the characteristic that defines you or your future. Every day we raise the expectations of blind people, because low expectations create obstacles between blind people and our dreams. You can live the life you want; blindness is not what holds you back.