Legal guidance on decontaminating animals
Do your preparedness plans and protocols include the decontamination of animals? They should.
Historically, an ongoing debate has raged about whether animals have "rights." In other words, do humans have an ethical or legal duty toward animals in general or at least to some classes of animals?
Ethical rights and duties are determined and enforced by public opinion. Various religions have differing views on the ethical rights of animals, ranging from the Buddhist belief that all life is interrelated to certain Christian beliefs that animals exist only for the use of human beings.
By contrast, legal rights are conferred by legislatures or the common law and are enforced by court action. And responders have varying levels of legal responsibility to animals.
Animals are unequal under the lawTraditionally, the law distinguished between two types of animals, wild and domestic. As animals become domesticated, they-and their owners-acquire more legal status. For example, the owner of a lost pet clearly has a greater claim for its return than does a trapper who loses a captured animal.
The current legal view considers domestic animals to be their owners' personal property. This has several implications. Traditionally, common law has recognized that individuals have an inherent privilege to control and use their possessions as they wish, with minimal legal oversight. Because the law stipulates that someone may not use a possession to cause harm to others, for example, the owner of a dog known to be aggressive must muzzle that dog.
Pets: Under current law, an owner may recover only actual damages to a pet, meaning that any loss of a pet would likely result in a financial award sufficient only to replace that pet at the animal's fair market value.
Recently, however, some courts have allowed claims for loss of a pet to include some compensation for sentimental value.
Claims for emotional damages suffered by animal owners have seldom proved successful. But some legal scholars envision future claims for loss of companionship and have proposed laws to remedy this and other damage inequities involving the loss of pets.
A logical extension of this reasoning could allow an individual to file a lawsuit for a failure to decontaminate a pet. However, such a lawsuit likely would not succeed because of the immunity that protects public safety agencies under most circumstances-especially if the claim involved a mass casualty situation.
Although no laws require first response agencies to decontaminate pets, people most likely will have close contact with their pets, so it may make sense to decontaminate those animals-if only to prevent people from becoming recontaminated. This does present a couple of problems, however. Often, pets are not accustomed to being handled by strangers, especially the type of handling required to decontaminate them, so they could present dangers to responders. Additionally, most evacuation facilities do not admit pets, so the problem arises about where to put the animals. So you'll need to incorporate ways to solve these problems into your pre-incident plan.
Working animals & service animals:First responders will encounter two classes of animals in hazmat environments that do have special rights under the law: working animals and service animals.
Working animals-including police horses, arson dogs, and search-and-rescue dogs-have the rights and privileges of commissioned officers and must be treated accordingly. This means if your protocols call for the decontamination of commissioned officers in a hazmat environment, you also must decon these working animals.
Animals that have received special training and have unique responsibilities toward their disabled owners occupy a special niche in the law. Common examples of service animals include seeing-eye dogs, deaf-assistance dogs and paraplegic-assistance animals. Although dogs are the most common service animals, other animals, such as monkeys and pigs, have also been trained to fulfill special needs for the disabled.
Because service animals are usually the property and extension of a disabled person, they have significant legal rights derived from federal disability laws. Title III of the Americans with Disabilities Act (42 U.S.C. _ 12182[a]) requires that, "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation."
Service animals are also generally exempt from laws that restrict the presence of pets. The U.S. Justice Department states, "Generally, a public accommodation shall modify policies, practices, or procedures to permit the use of a service animal by an individual with a disability."
The Justice Department explains that this statement "reflects the general intent of Congress that public accommodations take the necessary steps to accommodate service animals and to ensure that individuals with disabilities are not separated from their service animals. It is intended that the broadest feasible access be provided to service animals in all places of public accommodation."
Decontamination facilities are considered places of public accommodation. As such, they legally cannot restrict a seeing-eye dog just as they cannot refuse to decontaminate the dog's blind owner. Service animals are trained to be handled by strangers and would likely peacefully submit to decontamination procedures, especially in the presence of their owners. Therefore, any argument that decontamination of the animal might present a threat to health and safety likely would not override accommodation laws.
People who suffer discrimination under federal accommodation laws may file a civil rights lawsuit-even against public officials and government agencies. Civil rights lawsuits also lack immunities or damage caps, so a court may award a plaintiff both punitive damages and attorney's fees.
In addition, a flurry of recent state laws specifically addresses harm to service animals,and penalties for violation of those laws range from monetary damagesto criminal penalties. Such laws likely will proliferate, and first response agencies should know the applicable statutes in their state and consult legal counsel on how such laws would apply in a mass casualty situation.
Although no legal decisions have specifically addressed the need to decontaminate service animals, federal and state laws indicate a clear responsibility to do so-and include penalties for not doing so.
First response agencies should develop policies and procedures to address the decontamination of both service animals and working animals and then train responders in those techniques.
For more information on the subject of animal decontamination, check out these online courses from the Federal Emergency Management Agency: "IS 10: Animals in Disaster - Module A Awareness and Preparedness" and "IS 11: Animals in Disaster - Module B Community Planning."
Spencer Hall, MD, JD, is an emergency physician and consulting attorney in New Mexico who teaches courses on preparedness for weapons of mass destruction for the National Defense Preparedness Consortium. He has ongoing field experience in fire, EMS, hazmat and emergency management.
The author would like to thank Lexis-Nexis andthe Texas Engineering Extension Service of the Texas A&M University System for research support for this article.