Emotional Support Pets and Service Pets: What the Law Says About Each

By David F. Kramer

The working animal. The mention of this term conjures up images of horses hauling carts or police dogs taking down criminals, but the roles available to working animals of all types have been expanding in recent years.  

Animals can help people whose activities are limited by physical, mental, and emotional disabilities. They generally fall into three distinct categories: service animals, therapy animals, and emotional support animals—and each of these working pets have different rights and responsibilities under state and federal laws. This article will explore the legal idiosyncrasies of service and emotional support animals.

What is a Service Animal?

Under the Americans with Disabilities Act (ADA), a service animal is defined as an animal (most often a dog) that has been individually trained to work or perform one or more tasks for a person with a disability. The task must be related to the person’s particular disability.

While we most often associate service dogs with larger breeds like German Shepherds or Labs, there is no restriction on the size or breed of a service animal, provided it can competently do its assigned task.

“Doing work” or “performing tasks” is defined as the animal taking a specific action when needed to assist the person with a physical or mental disability. For example, not only do guide and hearing dogs help the blind and deaf, but other service animals might inform diabetics when their blood sugar reaches dangerous levels, detect when their owners are about to have a seizure, or simply remind them to take their prescribed medications.

While dogs and other service animals must be trained to be considered legitimate, there is no government imposed standard of training. Owners of service animals are free to train them themselves. Under the ADA, a service animal is not certified until it has finished its training, although a handful of states also certify dogs as service animals as they are still being trained.

The Laws That Govern Service Animals

Service animals must be kept under control by their handlers at all times, should be housebroken, and require vaccines in accordance with state and local regulations.

The laws governing where service animals are permitted are handled by three government entities: the Americans With Disabilities Act (ADA) when it comes to definition and purpose; Housing and Urban Development (HUD) when it comes to living situations; and the Federal Aviation Administration (FAA) when it comes to airline travel.

While the definition and usage of service animals is covered under federal law, specific laws pertaining to them differ from state to state and are broken down into about 10 categories:

• Application: most states include laws pertaining to guide, hearing, and service animals, but a few apply only to guide and hearing animals.
• Accessibility: defining public and private locations where service animals are permitted, as well as places they aren’t due to health, religious or other reasons.
• Interference: outlining the legal actions that can be taken against people who interfere with a service animal (these are generally misdemeanors).
• Housing: the rights of disabled persons to live with service animals (these generally pertain to not having to pay any additional monies to a landlord or group).
• Licensing and Fees: unlike pets, many states waive licensing and related fees for service animals.
• Identification: whether a service animal needs to be identified with a vest or special signage.
• Misrepresentation: penalties against someone who tries to falsely identify themselves as disabled.
• Trainers: all of the privileges entitled to the owner of a service animal are also entitled to trainers.
• “White Cane Laws”: these are motor vehicle laws that many states have enacted that offer special care and precautions towards the blind and disabled.
• Injury to Dog/Penalties: criminal penalties, fines, and potential jail sentences for people who would injure or kill a service animal. As mentioned above, interference is a misdemeanor crime, but injury or death of an animal could be increased to a felony under some states’ laws.

The ADA is fairly liberal when it comes to declaring your animal a service dog. In fact, under the Act there is no mandatory registration required. In many ways, it’s like the criminal justice system; an animal is presumed to be a service animal until proven otherwise. Service animals are generally permitted to accompany their handlers wherever they go, such as restaurants (including food prep areas for cafeterias, shelters and eateries with a self-service line), hotels, and public or private businesses and facilities. 

Are Some Breeds Excluded from Being Service Animals?

Interestingly, the ADA even extends service animal specifications for breeds of dog that people might consider dangerous, including ones that have been banned in some areas. If a municipality has banned pit bulls, for example, a pit bull that is declared a service animal is still technically permitted, but a legal challenge could very well end up in the banning of such an animal in the name of public safety. Under the ADA there are no breed exclusions for a dog to be considered a service animal.

Next: What is an Emotional Support Animal?

What is an Emotional Support Animal?

According to Dr. Jennifer Coates, veterinary advisor with petMD, “emotional support animals are animals that are prescribed by mental health professionals as part of the treatment for a diagnosed mental or psychiatric disability.”

Emotional support animals (ESA) provide therapeutic benefits to their owners, and they do not need any sort of special training because they aren’t required to complete specific tasks. The benefits they provide are mostly emotional, for example easing the symptoms of PTSD, autism, bipolar disorders, depression, panic attacks, social phobias, stress, etc. Despite the fact that ESAs are often mistakenly lumped into the same category as service animals, they are given far fewer protections by federal law.

An emotional support animal must be prescribed by a mental health professional through a fairly rigorous process. A licensed therapist  can also write a letter outlining a client’s condition as defined by the Diagnostic and Statistical Manual of Mental Disorders (DSM) and the resulting need for an ESA. A letter or prescription will offer a bit of credibility for an ESA, but like a service animal, no official documentation is required. 

The Laws That Govern Emotional Support Animals

ESAs are supported on a federal level by the Air Carrier Access Act (ACCA) and the Fair Housing Act (FHA), but have very little enforceable law to fall back on in other situations. So, unless you’re trying to keep an ESA in your home or take it somewhere by airplane, you may very well be out of luck.  Emotional Support Animals are not granted access to places of public accommodation (where service animals would be allowed) and may face challenges if taken almost anywhere animals aren’t normally permitted.

The Fair Housing Act does address the right to be able to live with your ESA. Technically, only two requirements need to be satisfied: Does the person seeking to live with this animal have a disability (physical or mental), and does the ESA alleviate one or more of the symptoms of that person’s disability?

These types of requests are best made prior to signing a lease and should be in writing.

A note from a person’s doctor is all that needs to be provided in most cases. A landlord can request further documentation on a particular disability, as well as the need for the assistance of an ESA for said disability, but the particulars of a person’s individual status need not be provided. In fact, it is against the law for a landlord to press an applicant on the nature of his or her disability.

A landlord may not “unreasonably delay” granting a request for an ESA, but the courts have not specified a time period in which these must be granted, so the hardship generally falls back onto the renter. Any fees and restrictions that a landlord would normally apply to a pet owner cannot be enforced for an ESA, and the animal generally is permitted access anywhere on a rental property where people are permitted. However, tenants with ESAs may still be held financially responsible for damage caused by their animals, whether the damage occurs in their rental properties or in the common areas.