Laws Revolving; Emotional Support Animal
Emotional Support Animal are Protected by Two Federal Laws;
- The Fair Housing Act (FHA) – The Department of Housing issues guidance relating to the FHA
This explains certain obligations of housing providers under the Fair Housing Act (FHAct), Section 504 of the Rehabilitation Act of 1973), and the Americans with Disabilities Act (ADA) with respect to animals that provide assistance to individuals with disabilities. The Department of Justice’s (DOT) amendments to its regulations for Titles II and III of the ADA limit the definition of “service animal” under the ADA to include only dogs, and further define “service animal” to exclude emotional support animals. This definition, however, does not limit housing providers’ obligations to make reasonable accommodations for assistance animals under the FHAct or Section 504. Persons with disabilities may request a reasonable accommodation for any assistance animal, including an emotional support animal, under both the FHAct and Section 504.
- The Air Carrier Access Act (ACAA) – The Department of Transportation issues guidance regarding the ACAA.
Air travel is the only type of transportation that has federal regulatory guidance for animal accommodations under The Air Carrier Access Act, 49 (hereinafter ACAA), was the first federal law to directly prohibit discrimination on the basis of disability on airlines. Since its enactment, the Department of Transportation has issued a number of regulations applying to a range of issues, including the status of emotional support animals. The regulations clarify that ESAs are not included under the ACAA.
The Department of Transportation acknowledges ESAs as qualifying for limited protections, but limits access of ESAs to individuals with a diagnosed mental or emotional disorder and allows carriers to insist on “recent documentation from a licensed mental health professional to support the passenger’s desire to travel with such an animal.” Documentation must be provided on the letterhead of a licensed mental health professional stating that the passenger has a mental disability recognized under the Diagnostic and Statistical Manual of Mental Disorders (DSM V).
An emotional support animal is a type of assistance animal that is recognized as a “reasonable accommodation” for a person with a disability under the federal Fair Housing Act (FHAct, 42 U.S.C.A. 3601 et seq.). The assistance animal is not just a regular pet according to the U.S. Department of Housing and Urban Development (HUD). HUD is the agency that oversees the FHAct and investigates claims of housing discrimination.
There are only two questions that HUD says a housing provider should consider with a request for an assistance animal as a reasonable accommodation:
(1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
A “no” answer to either of the questions means that a housing provider is not obligated to make a reasonable accommodation according to HUD. This may mean that the person does not meet the definition of disability or that the assistance animal does not help with symptoms of the disability. If the answer is “yes” to both, then HUD states the FHA requires an exception to a “no pets” rule. The emotional support animal must alleviate, or help, some symptom(s) of the disability.
HUD does not list all the possible disabilities for which an assistance animal could be used. Instead, HUD says the functions include “providing emotional support to persons with disabilities who have a disability-related need for such support.” Emotional support animals have been known to assist disabled individuals with severe depression, generalized anxiety disorder, post-traumatic stress disorder, and many other emotional and psychiatric disabilities.
If a person with a disability needs to use an assistance animal, he or she must first make the request to his or her housing provider or housing board. HUD says that a person seeking the accommodation must submit reliable documentation of the disability and disability-related need for the assistance animal if the disability is not known or readily-apparent. This documentation is usually a letter from a medical doctor or treating therapist who can establish the disability and need for the assistance animal. The housing provider may not ask for access to medical records or unreasonably delay the request.
Requests for an assistance animal are evaluated on a case-by-case basis. This means that housing providers cannot limit the assistance animal with general assumptions about certain species or breeds. There must be an individualized assessment of the specific assistance animal to determine if it poses a direct threat of harm or would cause substantial property damage.
Once these requirements are met, HUD goes onto to say that restrictions normally applied to pets cannot be applied to assistance animals. Housing providers cannot charge a “pet deposit” for disabled individuals who rely on assistance animals.
Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals. For example, while housing providers may require applicants or residents to pay a pet deposit, they may not require applicants and residents to pay a deposit for an assistance animal.
The goal of the FHAct is to give disabled individuals and equal opportunity to use and enjoy their dwellings like non-disabled individuals. Reasonable accommodations are a recognized means of achieving that goal.