Service animal, assistance animal, emotional support animal, comfort animal, and companion animal. So many names, but what do they mean? Regardless of the name, one thing is clear: these animals are not considered “pets” under the laws that govern them.
So then, what are the differences between these animals? Who gets to have these animals? Where can people have these animals? Do these animals have to be dogs? And what certifications or training, if any, is required? In relation to housing, the answers to these questions can generally be found by looking at three federal laws: the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), and Section 504 of the Rehabilitation Act (Section 504).
The FHA, Section 504, and Assistance Animals
While landlords are generally free to have restrictions on pets in their properties – including prohibiting them completely if they wish – those types of restrictions may have to be modified if a person needs an assistance animal to accommodate their disability. The FHA allows for persons with disabilities to have “assistance animals” in “dwellings,” which includes a multitude of housing types – rental and non-rental housing, subsidized and private housing, group homes, assisted living facilities, and most shelters and other transitional housing. Section 504 allows persons with disabilities to have “assistance animals” in housing and housing programs that receive federal financial assistance, such as federally subsidized housing programs.
The definition of “assistance animal” under these laws is broad. It includes animals that have been trained – formally or informally – to perform tasks or services for persons with disabilities. It also includes untrained animals that provide other assistance to people with disabilities. Significantly, “assistance animal” includes “emotional support animals” or “ESAs.” ESAs are also sometimes known as “comfort animals,” “companion animals” or “support animals.” In addition, under the Fair Housing Act and Section 504, assistance animals can be any type of animal and is not limited to dogs.
Assistance animals do not need to be registered or certified. Essentially, their very existence and the comfort they provide may assist a person with a disability. See Chloe Reichel, From best friend to therapist: Research on emotional support animals, https://journalistsresource.org/studies/society/…/emotional-support-animals-research (compilation of research articles last updated February 15, 2018).
Because assistance animals under the FHA are not pets, a housing provider’s normal pet rules – including pet fees, pet deposits, and breed and weight restrictions – do not apply to them. However, owners of assistance animals still have to pick up after the animal, maintain the animal’s health, and are responsible for any property damage caused by the animal. Assistance animals must also be kept under control and cannot be a nuisance or a direct threat to others.
The ADA and Service Animals
While businesses and offices are generally free to have “no pet” policies, the ADA allows persons with disabilities to have “service animals” in places of public accommodation. Because under the ADA, service animals are not considered “pets,” they are permitted, even if the business would normally prohibit animals under their “pet” policy.
Places of public accommodation are locations where the public is invited to visit, such as shopping malls, stores, restaurants, theaters, etc. In relation to housing, rental offices and common areas that are open to the public are considered places of public accommodation. In addition, most shelters are covered by the ADA.
According to the federal regulations, only dogs are defined as “service animals” under the ADA. However, separate provisions were added to these same regulations in 2011 to allow miniature horses to act in the same manner for persons with disabilities.
To qualify as a service animal, the dog (or miniature horse) must be trained to work or perform a task or service for a person with a disability. Examples of services or tasks include activities such as guiding a person who is blind, alerting someone who is deaf of sounds, pulling a wheelchair, reminding someone with a mental illness to take their medications, or calming a person who suffers from Post Traumatic Brain Disorder (PTSD). Under the ADA, the service or task cannot include providing emotional support or companionship.
The training for the service animal can be formal, such as by a training organization or course, or informal, by some other means. For example, a dog that shows natural ability to assist someone who is deaf and is trained by someone informally to assist in these circumstances may suffice to be a service animal under the ADA.
Business owners are prohibited from asking for proof of training or certification, however, is not allowed under the ADA. When it is not obvious what service the animal provides the person with a disability, the only these questions permitted under the ADA are: (1) Is the dog/horse a service animal because of a person’s disability?; and (2) What work or task has the animal been trained to perform?
Service animals must generally be leashed or harnessed. Where a leash or harness interferes with the service provided or the person’s disability prevents the usage of them the person with a disability must maintain control of the animal by voice, signal or some other means. Service animals must also be housebroken and not be a nuisance to others. Owners of service animals protected by the ADA are still responsible for any property damage caused by these animals.
For more information, please see: https://www.ada.gov/service_animals_2010.htm
Service and assistance animals can play an essential role in the life of a person with a disability.
While they may go by many names, service animals and assistance animals are recognized by the ADA, FHA, and Section 504. Often times in the housing context, multiple laws will apply to a particular property. For this reason, it is important to know the similarities and differences in how these animals are interpreted under each law.
Whether a particular animal is permitted for a person with a disability will depend on which law applies, the type of animal, and where the animal will be accompanying the person with a disability. For example, under the FHA, a person with a disability may be allowed to have an emotional support animal in their residence and in the common areas of the property. However, this person may not be able to have that same animal accompany them into a restaurant or business in accordance with the ADA.
A housing provider that denies an individual with a disability the right to have an assistance animal, or imposes restrictions or fees on this individual, may be in violation of the FHA. The Fair Housing Project has assisted individuals with disabilities enforce their legal rights under the Fair Housing Act to have an assistance animal in their housing.
Navigating these issues can be complex. For more information, please contact the Fair Housing Project at firstname.lastname@example.org.
More from this Newsletter Issue: Summer 2018
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