Emotional Support Animals – What is the law?
We find reference to Emotional Support Animals (ESA) in the Americans with Disabilities Act (ADA) and in the Fair Housing Laws.
Under the ADA they define “Service Animals” and in that definition exclude Emotional Support Animals. “Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or performing other duties. Service animals are working animals, not pets. The work or task a dog has been trained to provide must be directly related to the person’s disability. Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.”
In addition to the provisions about service dogs, the Department’s revised ADA regulations have a new, separate provision about miniature horses that have been individually trained to do work or perform tasks for people with disabilities. (Miniature horses generally range in height from 24 inches to 34 inches measured to the shoulders and generally weigh between 70 and 100 pounds.) Entities covered by the ADA must modify their policies to permit miniature horses where reasonable.
Service animals are required to be permitted in all places open to the public. This is federal law, even if the local building department prohibits animals in a building. Service animals are defined as dogs and miniature horses only; that are specifically trained to assist the person with their handicap. Under ADA emotional support animals are not service animals.
The Fair Housing Act requires owners of housing facilities to make “reasonable accommodations”, exceptions in their policies and operations to afford people with disabilities equal housing opportunities. For example, a landlord with a “no pets” policy is expected to grant an exception to this rule and allow an individual who is blind to keep a service animal in the residence.
I had a student in one of my classes, who owned a ten unit apartment house, tell this story. They had a blind person with a Seeing Eye Dog apply to rent one of their apartments. They were about to make an exception to their “no pets” policy when one of their existing tenants found out about the potential new renter. They came to the owner and voiced their concern, saying that the reason they rented in this building was because of the “no pets” policy. Explaining, they have terrible allergies to animals. Consequently the owner denied renting to the blind person. If challenged, this would be a legitimate excuse for not complying with the ADA Act.
The Fair Housing guidelines now includes giving “reasonable accommodations” to people with Emotional Support Animals (ESA), an animal that provides the owner with companionship or comfort. The need for an Emotional Support Animal must be documented with a certification letter from a Doctor or Mental Health Provider.
An emotional support animal is an animal (typically a dog or cat though this can include other species) that provides a therapeutic benefit to its owner through companionship. The animal provides emotional support and comfort to individuals with psychiatric disabilities and other mental impairments. The animal is not specifically trained to perform tasks for a person who suffers from emotional disabilities. Unlike a service animal, an emotional support animal is not granted access to places of public accommodation. Under the federal Fair Housing Act (FHA), an emotional support animal is viewed as a “reasonable accommodation” in a housing unit that has a “no pets” rule for its residents.
The United States Department of Housing and Urban Development (HUD) uses the term “assistance animal” to cover any animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. An emotional support animal is one type of assistance animal allowed as a “reasonable accommodation” to a residence with a “no pets” rule.
At issue still and undefined are the types of animals that may be considered emotional support or assistance animals. Recently a woman wanted to take her ESA Peacock on a plane with her. The airline denied her request do the size of the bird.
Retail stores and other places can choose to allow Emotional Support Animals into their businesses; but what about the people with allergies to animals. The dilemma continues.
Ed Smith is a Commercial and Investment Real Estate Continuing Education Instructor, Corporate and Private Trainer, Speaker, Author, Broker and Consultant; he may be contacted at CRETeach@charter.net or at www.CommercialEd.com
Edward S. Smith, Jr., Real Estate Broker
Licensed in New York and Connecticut
Smith Commercial Real Estate
Berkshire Road, Sandy Hook, CT