Emotional support animal

An emotional support animal (ESA) is a type of animal that provides comfort to help relieve a symptom or effect of a person's disability. Under U.S. law, an emotional support animal is not a pet and is generally not restricted by species.[1][2]

An emotional support animal differs from a service animal. Service animals are trained to perform specific tasks such as helping a blind person navigate,[3] while no training is required for emotional support animals and they need not be formally trained to perform any tasks to mitigate mental illness. Any animal that provides support, well-being, comfort, or aid, to an individual through companionship, unconditional positive regard, and affection may be regarded as an emotional support animal.[4]

In the U.S., people with mental health disabilities can be exempted from certain federal housing and sometimes travel rules if they own an emotional support animal. To receive that exemption, they must meet the federal definition of disabled, and the animal must provide emotional support that alleviates some symptom or effect of the disability. The person must usually present a letter from a certified healthcare provider, stating that the animal provides emotional support that alleviates one or more of the symptoms or effects of the disability.[2]

Animals

Emotional support animals are typically cats and dogs, but may be members of other animal species. In relation to whether or not an emotional support animal should be allowed in a rental property, it is thus necessary to perform an individualized assessment of the specific assistance animal to determine if it poses a direct threat of harm or would cause substantial property damage, and not to assume that an animal is excluded based upon breed or species. Although a wild or exotic animal that poses an increase risk of disease or potential attack upon other people may potentially be excluded, courts have recognized species including guinea pigs and miniature horses as emotional support animals.[2]

Some airlines will allow emotional support animals, with proper documentation from a veterinarian and/or mental health counselor, and small animals such as cats and dogs can be held on the passenger's lap during the flight.

There is no requirement under federal law for emotional support animals to wear a tag, harness, or clothing of any type indicating they are emotional support animals.[5]

Training and tasks
Emotional support animals do not need to have any special training.

There are no training requirements for emotional support animals. Emotional support animals typically have no training beyond what would be expected for the same type of animal.[6] Emotional support animals need not perform any tasks other than what a pet of the same species would perform, and may display unwanted behaviors, such as defecating or urinating in inappropriate places, growling and barking at people, or biting them.[7]

Both poorly trained emotional support animals and poorly trained pets that are being fraudulently passed off as emotional support animals represent a threat to the health, safety, and function of both people and trained service animals.[8]

Owners

To qualify for an emotional support animal in the US, its owner must have an emotional or mental disability that is certified by a mental health professional such as a psychiatrist, psychologist, or other licensed mental health care provider. These may be invisible disabilities.

The owner's mental health impairment must be substantial enough to produce disability, rather than discomfort or a desire to have a pet.[6] Furthermore, for the provider to certify the animal non-fraudulently, the emotional support animal's presence must provide a significant benefit that makes the difference between the person functioning adequately and not.[6]

ESA letters

An emotional support animal letter, or an ESA letter, is a document that qualifies people to be accompanied by a support animal in contexts in which pets might not be permitted, such as in rental housing. The letter must be issued by a psychologist, psychiatrist, qualified mental health professional, or physician.[9][10] The professional who issues an ESA letter need not be the recipient's primary care physician, and some doctors may refer patients who are seeking an ESA to psychologists or other professionals.[11]

Under US Department of Transportation, rules, the doctor or mental health professional who issues the letter must be currently providing treatment to the passenger.[12] Airlines are not obligated to accept certificates or letters that are more than one year old, and may require that the certification be provided on the letterhead of a licensed mental health professional or doctor who is specifically treating the passenger's mental or emotional disability.[10] It is unclear whether these rules still stand when accepting ESAs after the newest revision[13]

Multiple emotional support animals

While there do not seem to be any cases dealing with the issue of multiple emotional support animals, the basic requirements for this accommodation would be the same.[14] Thus, if a person with a disability claimed to need multiple emotional support animals, he or she would need documentation supporting this claim from his or her psychologist or other licensed healthcare professional.[14] The practitioner would need to provide documentation that each support animal alleviated some symptom of the disability.[14]

Misrepresentation

The ability to avoid extra costs, such as paying damage deposits for pets in a rental apartment or extra baggage fees for taking an animal on an airplane, has resulted in some people misrepresenting their pets as ESAs.[7] This was one of the reasons which prompted the revision of the Air Carrier Access Act in December 2020.[1]

In some US states, providing a letter, registry, or certificate to a person who is not disabled is a crime. Many states have made it a criminal misdemeanor to make false claims stating that their animal is an assistance animal or to say they are a handler training an assistance animal.[15] States that have passed laws criminalizing the misrepresentation of service and assistance animals include Alabama, Arizona, California, Colorado, Florida, Idaho, Iowa, Kansas, Maine, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Texas, Utah, Virginia, and Washington State.[16]

US housing

In the U.S., legal protection against housing discrimination is afforded to people with mental disabilities under two federal statutes: Section 504 of the Rehabilitation Act of 1973 and the Federal Fair Housing Amendments Act (FHAA) of 1988.[17] These statutes, and the corresponding case law, create the general rule that a landlord cannot discriminate against people with mental disabilities in housing, and if a reasonable accommodation will enable a person living with a disability to equally enjoy and use the rental unit, the landlord must provide the accommodation. Persons with disabilities may request a reasonable accommodation, such as a waiver of a "no pets policy", for any assistance animal, including an emotional support animal, under both the FHAA and Section 504.[18]

Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act was enacted in 1973 and made broad and sweeping statements that discrimination against the disabled in any program receiving federal financial assistance was illegal.[17] However, it was not until 1988 when the U.S. Department of Housing and Urban Development (HUD) created regulations under the statute.[17] Section 504 states:

No otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.[17]

In the context of housing discrimination, this statute creates the rule that public housing authorities cannot deny housing to a person with a disability solely because of his or her disability, and that if a reasonable accommodation can be made to make housing available to a person with a disability, the landlord is required to make the accommodation.[19] Even though the statute does not expressly use the phrase "reasonable accommodation", it has been read into the statute by case law and HUD regulations interpreting the statute.[17]

To establish that a "no pets" waiver for an emotional support animal is a reasonable accommodation under Section 504, the tenant must: have a disability, be "otherwise qualified" to receive the benefit, be denied the benefit solely because of the disability, and the housing authority must receive federal financial assistance. Courts have held that "otherwise qualified" means that the tenant must be able to meet the requirements of the program in spite of the handicap. Also, the tenant must be able to meet the general rules of tenancy, such as cleaning up after the animal and walking the animal in designated areas.[17]

The Majors and Whittier Terrace courts established the foundational principles that a tenant can be "otherwise qualified" under Section 504 despite an inability to comply with a "no pets" policy, and that a waiver of a "no pets" policy can be a reasonable accommodation under Section 504.[17][19][20] However, several courts have consistently held that a tenant requesting an emotional support animal as a reasonable accommodation must demonstrate a relationship between his or her ability to function and the companionship of the animal.[note 1][21] This required nexus between the disability and the emotional support animal has been refined by several courts. For instance, in Janush v. Charities Housing Development Corp (N.D. Ca., 2000), the U.S. Northern District Court of California held the reasonable accommodation is a fact-based, and not species-based, issue.[17] In Nason v. Stone Hill Realty Association (1996), a Massachusetts trial court recognized that there were more reasonable accommodations to lessen the effects of a person's disability, other than keeping an emotional support animal, and therefore denied the tenant's motion for preliminary injunction.[17] Courts have held the emotional distress expected to occur if a person is forced to give up his or her emotional support animal will not support a reasonable accommodation claim.[17]

Since a violation of Section 504 requires the housing authority to receive federal funding, this act did not cover private housing providers. This legislative gap existed until 1988 when Congress passed the Fair Housing Act Amendments.

Fair Housing Act Amendments

Whereas only housing authorities receiving federal financial assistance are subject to Section 504, both public and private housing authorities are subject to the provisions of the Fair Housing Act.[17] Enacted as part of the Civil Rights Act of 1968 legislation, the Fair Housing Act (FHA) focused on housing discrimination on the basis of race, color, national origin, or gender; in 1988, however, the Federal Fair Housing Act Amendments (FHAA) expanded this scope to include handicapped persons.[17] The FHAA states that it is unlawful "to discriminate in the sale or rental...of a dwelling to any buyer or renter because of a handicap of that buyer or renter, a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available, or any person associated with that buyer or renter." Further, it is discrimination for any person to: "refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas." Thus, like Section 504, the FHAA requires landlords to make reasonable accommodations for tenants.

Additionally, the FHAA, in section 3602(h) defines handicap, with respect to a person, as:

  1. a physical or mental impairment which substantially limits one or more of such person's major life activities;
  2. a record of having such an impairment; or
  3. being regarded as having such an impairment.[22]

The term "major life activities" has been interpreted broadly to include those "activities that are of central importance to daily life," such as "seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, speaking, and reproducing."[23] The United States Department of Housing and Urban Development (HUD) is responsible for administering the FHAA; the Attorney General and private individuals may enforce it.[24]

To establish a prima facie case of housing discrimination under the FHAA: the tenant must have a qualifying disability, the landlord knew of the handicap or should reasonably be expected to know of it, accommodation of the handicap may be necessary to afford the tenant an equal opportunity to use and enjoy the dwelling, and the landlord must deny the request, such as refusing to waive the "no pets" policy.[17]

The second element, that the landlord knew of the handicap or should have known of it, places an affirmative burden on the tenant to request the reasonable accommodation, such as a waiver of a "no pets" policy for an emotional support animal.[17] A tenant wishing to obtain a waiver of a "no pets" policy for an emotional support animal may meet this burden by providing a letter from his or her physician or mental health professional: stating that the tenant has a mental disability, explaining that the animal is needed to lessen the effects of the disability, and requesting that the animal be allowed in the rental unit as a reasonable accommodation for the mental disability.[17] Landlords are entitled to ask for supporting materials which document the need for an emotional support animal.[21] Mere emotional distress that would result from having to give up an animal because of a "no pets" policy will not qualify under federal law. Instead, there must be a link, or a nexus, between the animal and the disability.[17] The nexus between the animal and the disability is analyzed under the third element of an FHAA housing discrimination case, known as the necessity requirement, and requires that the accommodation will affirmatively enhance a disabled tenant's quality of life by ameliorating the effects of the disability.[24] So long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation.[21]

Although the Fair Housing Act covers both multi- and single-family detached home, the sale or rental of a single family dwelling by an owner is exempt from the statute.[24] There are two exceptions to this exemption, however. One is that the exception will not apply if the private individual owner owns more than three single-family homes.[24] The other exception to this exemption is the use of a real estate agent or a broker to rent out the home.[24]

A tenant may be awarded actual and punitive damages, injunctions, and attorney fees at the discretion of the court for a landlord's violation of the FHAA.[24]

It is important to note, that though in most cases, landlords do grant ESA's the same reasonable housing accommodations as a service animal, there have been instances where they do not. There are some court cases, such as, the Kenna Homes case in West Virginia,[25] where the court has said it is not a violation of Fair Housing rules for a landlord to require an assistance animal to have some form of training.[15]

Americans with Disabilities Act

The Americans with Disabilities Act of 1990 (ADA) allows people with disabilities to bring their service animals in public places.[26] However, the ADA only extends these protections to dogs that have been "individually trained" to "perform tasks for the benefit of an individual with a disability," which is the definition of service animals under 28 C.F.R. § 36.104.[26] Since emotional support animals are typically not trained for an individual's specific disability and since emotional support animals might not be dogs, they do not receive the protections of the ADA.[26] A public place can therefore deny an emotional support animal admission.

In situations where the ADA and the FHAA/Section 504 apply simultaneously (e.g., a public housing agency, sales or leasing offices, or housing associated with a university or other place of education), housing providers must meet their obligations under both the reasonable accommodation standard of the FHAct/Section 504 and the service animal provisions of the ADA.[18][27]

The lack of training for emotional support animals has also led to controversy in the courts. Specifically, there is controversy over whether the ADA definition of service animal, with its requirement of training, applies to reasonable accommodation claims for animals under the FHAA.[28] However, HUD administrative judges have ruled in favor of emotional support animals, despite their lack of training, as being reasonable accommodations.[note 2][28] Additionally, several courts have also ruled that untrained assistance animals are reasonable accommodations under the FHAA.[note 3] Yet, there are cases that have held an assistance animal, in order to be considered a reasonable accommodation under the FHAA, must be trained.[note 4]

Landlords

Many landlords have "no pets" policies for their rental properties, and many landlords that allow pets impose restrictions on the type and size of pets that tenants are allowed to bring into the rental property. Many landlords are reluctant to waive their pet policies and restrictions, even when requested by a tenant who is requesting accommodation of a mental or emotional disability. Nonetheless, most landlords may not legally reject a tenant who has documented qualification for an emotional support animal, nor may a landlord charge any form of pet fee to that tenant.[11]

Landlords may be concerned that waiving a "no pet" policy for one tenant will inspire many others to claim mental illnesses and the need for emotional support animals.[17][29] Landlords may believe that as more tenants have animals on the property, odors and noises from the animals may deter other tenants from renting and thus lower the value of the rental property.[17] Landlords may also believe that making exceptions to a "no pets" policy for a tenant's emotional support animal may confuse other tenants who do not understand why one person was allowed an animal while they were not.[23] However, if a tenant documents the need for an emotional support animal under the Fair Housing act or state law, and the landlord is not exempt from those laws, the landlord must allow the tenant to possess an emotional support animal.[30] The FHA does not have a conclusive definition of what type of animal an assistance or companion animal must be, plus the animal does not need to be trained to perform any specific task to be considered an emotional support or companion animal. This means dogs, cats, birds, and other types of companion animals can be considered use for emotional support.[31][32]

Pet deposits

The U.S. Department of Housing and Urban Development and Department of Justice have held that "providers may not require persons with disabilities to pay extra fees or deposits as a condition of receiving a reasonable accommodation."[33] In 1990, a HUD administrative judge enjoined owners of an apartment complex from charging a person with a disability a pet deposit fee.[24] The judge held that an auxiliary aid, like a service, guide, or signal dog, may be necessary to afford the individual an equal opportunity to use and enjoy the dwelling unit, including public and common areas.[24] Accordingly, when a tenant qualifies for a service animal or emotional support animal, a landlord may not charge the tenant additional fees in association with the presence of the animal in the rental property. This prohibition extends to pet deposits and fees, even when those fees are charged to other tenants who have pets.[30]

A landlord may charge a tenant for damage caused to a rental property by the tenant's emotional support animal, and may deduct the cost of repairs from the tenant's security deposit, but may not increase the security deposit based upon the tenant's possession of an emotional support animal.[14]

Exceptions

Exceptions may apply to a landlord's obligation to allow a tenant to possess an emotional support animal. For example, owner-occupied buildings with four or fewer rental units are exempt from the federal Fair Housing Act. The Fair Housing Act also exempts private owners of single-family housing sold or rented without the use of a broker, as long as the owner does not own more than three single family homes, as well as housing operated by organizations and private clubs that restrict occupancy to members.[14] Exemptions under state law may be more restrictive than federal exemptions.[30]

Even when the Fair Housing Act applies, circumstances may arise under which a landlord may restrict a tenant from possessing an emotional support animal.

  • If a tenant's emotional support animal compromises the safety of other tenants or their property, or if the animal poses a danger to other tenants, the landlord may not have to allow the tenant in the housing or waive a "no pets" policy.[17]
  • If the tenant becomes unable to properly care for his or her emotional support animal, the landlord may be able to restrict the tenant's continuing possession of the animal.
  • If a tenant is neglecting his or her emotional support animal and the neglect rises to a level where the animal is endangered, then there may be a basis for action by the police or animal control.[14] If any animal is being neglected, local law enforcement or animal control can intervene.
  • If other more reasonable alternatives exist to lessen the effects of the disability and the tenant has not provided proper documentation of an emotional support animal, a court may not compel a landlord to waive a no pets policy as an accommodation of the tenant's disability.[17]
  • Even if entitled to possess an emotional support animal, a tenant remains subject to all the other provisions of the lease, including any requirement to maintain his or her residence in a sanitary manner.[14] A landlord may also evict a person with a disability if that person does not comply with legitimate tenancy rules that apply to all tenants.[17]

If the requested accommodation (i.e., the waiver of a "no pets" policy for an emotional support animal) constitutes an undue financial or administrative burden for the landlord, or fundamentally alters the nature of the housing, the landlord may not have to provide the reasonable accommodation.[21] However, as the burden of allowing emotional support animals is generally modest, most landlords have been unsuccessful in arguing a denial of a waiver of a "no pets" policy on the basis of a claimed extreme burden.[17]

College residence halls and dormitories

On April 25, 2013, the U.S. Department of Housing and Urban Development sent notice to its regional offices that public universities are required to comply with the Fair Housing Act, which includes allowing emotional support animals into college dormitories and residence halls.[34] As of 2015, colleges in the United States such as St. Mary's College of Maryland were trying to accommodate students with a documented need for emotional support animals.[35]

US Employment
ESA in the workplace

Current ADA rules require employers not to discriminate on the grounds of a disability. This means they need to make certain exceptions to service animals brought on the job with their owner. There are questions as to whether these exceptions extend to ESAs, because by law, they are not service animals. There are court cases both for and against ESAs being brought to work. Currently, this area is in a state of flux and until laws are put into place that specifically address this issue, cases will have to be decided as they arise. As it stands now, a person can have their ESA at work as long as they can provide documentation supporting the need and it is deemed a 'reasonable adjustment'.[36][37]

Air travel in the US

Emotional support animals are no longer required to travel on U.S. airlines with their disabled owners .

On December 2, 2020 the US Department of Transportation announced that the Air Carrier Access Act was getting a revision which no longer required airlines to accept ESAs, allowing them to be treated as pets.[13] This came into force 30 days after the final ruling. Prior to this, the Air Carrier Access Act had established a procedure for modifying pet policies on aircraft to permit a person with a disability to travel with a prescribed emotional support animal, so long as they have appropriate documentation and the animal is not a danger to others and did not engage in disruptive behavior (for example, jumping on people, barking or growling, urinating or defecating in the cabin or gate area, etc.). "Unusual" animals, including all snakes and other reptiles, were legally allowed to be refused.[38][39][10]

Under the new DOT rules, most airlines have decided to treat ESAs as pets.[40] Volaris, Westjet and Air Canada have continued to accept ESAs at no extra cost as long as they have the right documentation.[41][42][43]

With the prior exceptions provided to emotional support animals, many people who do not have a mental disability have tried to bring their animals on a plane and pass them off as emotional support animals.[44] This was one of the prompts for the revision of the Act.[13]

While an airline is no longer to required to allow emotional support animals, the same is not true for a service dogs, however, it is for service miniature horses.[13]

Controversy

Controversies include the behavior of some animals, harm to other people, the problem of widespread fraud, and the scientific inquiry about the benefit of emotional support animals.

Emotional support animals may behave differently to trained assistance animals. For instance, due to the lack of training, an emotional support animal may bark or sniff at other people, whereas service dogs are trained not to do so.[44]

People with unique disabilities (invisible disability), such as allergy to animal dander, have suffered from allergic attacks triggered by emotional support animals.[45]

There is also a concern about people fraudulently acquiring emotional support animals though they are legally not considered disabled.[7] According to one survey, Americans generally believe that a majority of emotional support animals serve a legitimate need, but the more experience the respondents had with service animals and emotional support animals, the more aware they were of fraud.[46] The prevalence of fraud, and the rising popularity of emotional support animals, has increased the number of animals in public places where animals are normally not allowed. Several well-publicized incidents involving emotional support dogs causing injuries to passengers or airline employees on flights[47] have led to further controversy, stricter policies for flights, and a growing movement to institute a national registry and certification process for service dogs and emotional support animals.[8]

Scientific evidence

Researchers have not established that untrained emotional support animals provide any significant benefit to people with mental or emotional disabilities.[6][48] Interacting with an animal may reduce perceived emotional distress for some people, but the scientific research is limited and of low scientific quality.[49] Existing research suggests that the benefit, if any, is smaller than its proponents hoped for.[49] A small number of studies have found that emotional support animals increased their owners' distress.[49][50] There is no research on uncommon animals such as hamsters.[51]

There is also evidence that requesting exemption letters from psychologists or mental healthcare providers can damage the recipients therapeutic relationship with these professionals, regardless of the outcome of these requests.[6] Ethically, providers of psychotherapy may choose to recommend an emotional support animal for the people they are treating if it will play a temporary part in a larger treatment plan, but not as a form of permanent palliation of symptoms.[6] For permanent situations, therapists often refer the client to a neutral, independent psychologist who can determine whether the individual is disabled and/or would benefit from an emotional support animal.[6] This process is not a careless rubber-stamping of the request; the neutral, independent provider should review the client's records, interview the client, consult with the therapist, and do whatever additional testing is necessary to determine the extent of disability and the appropriateness of the recommendation, and, if necessary, be willing and able to defend the diagnosis and decision to prescribe the animal in court.[6]

Other types of assistance and service animals

Emotional support animals are only one type of animal that is used for people with disabilities or similar issues. Other types of animals used by and for people with disabilities include:

  • Service animals or assistance dogs: Animals, usually dogs, that have been trained to perform specific tasks for a person with a disability. Subtypes include:
    • Guide dogs and guide horses: Dogs and miniature horses that have been trained to help a blind person walk independently.
    • Hearing dogs: Dogs that have been trained to identify sounds for a deaf person, such as an alarm or someone calling the person's name.
    • Medical response dogs: Dogs that have been trained to notice the onset of a medical condition, such as hypoglycemia in a person with diabetes, and to alert the handler.
    • Mobility assistance dogs: Typically larger dogs, mobility assistance dogs are trained to help persons who have difficulty walking, such as by pulling a wheelchair, opening doors, or letting the handlers lean on the dogs for stability and support while walking.
    • Psychiatric service dogs: Dogs that have been trained to perform specific tasks, such as entering a room to determine whether it poses any threat to the handler. This includes autism service dogs.
    • Seizure response dogs: Similar to medical response dogs, these dogs are trained to alert their handlers to the onset of an epileptic seizure.
  • Therapy cats and therapy dogs: Cats or dogs that comfort people in difficult situations, such as people in hospice care. Unlike assistance dogs, therapy animals are not usually trained to perform specific tasks, and the people they interact with may not be disabled. Unlike emotional service animals, they are not necessarily owned by a person with a disability, but instead visit different people, who may or may not be disabled, through programs in healthcare institutions, schools, or disaster areas.

See also

Notes
  1. See Majors v. Housing Authority of the County of Dekalb (5th Cir. 1981); Housing Authority of the City of New London v. Tarrant, (Conn. Super. Ct. Jan. 14, 1997); Whittier Terrace v. Hampshire (Mass. App. Ct. 1989); Durkee v. Staszak (N.Y.App.Div. 1996); Crossroads Apartments v. LeBoo (City Court of Rochester, N.Y. 1991)
  2. See HUD v. Dutra, 1996 WL 657690 and HUD v. Riverbay Corporation, 1994 WL 497536
  3. See Overlook Mutual Homes, Inc. v. Spencer (S.D. Ohio 2009), Bronk v. Ineichen (7th Cir. 1995), Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc. (D.N.D. 2011) (this case acknowledges that some courts use the ADA definition of service animals to apply to animals under the FHAA).
  4. See "In re Kenna Homes Co-op. Corp." (2001); Prindable v. Association of Apartment Owners of 2987 Kalakaua (D. Haw. 2003); Assenberg v. Anacortes Housing Authority (W.D. Wash. 2006).

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