May 2020 - Vol. 14, Issue 5
This article for The Voice was written by Richard A. Kroll, Esq. of Rochester, New York, a member of the Special Needs Alliance. An attorney with 45 years of experience, his expertise is frequently sought by both individuals, and organizations in the special needs community. Richard is a self-described “cat-person.” Please visit him on the web at www.Kroll-LawOffice.com.
People with disabilities who are living, working, going to school, shopping, visiting, enjoying entertainment, traveling, or doing virtually anything else may be accompanied by a service animal or an emotional support animal. The most common animals taking on this role are dogs; but cats, rabbits, goats, pigs, and even horses are sometimes used for support.
Animals generally fall into two categories: service animals and emotional support animals. Service animals are specially trained and certified. Emotional support animals do not need training. A service animal must be under the control of its handler, although leashes and other physical restraints are not always necessary. There is no similar requirement for an emotional support animal.
An owner of an emotional support animal must have a diagnosed need for therapy and be prepared to provide documentation of that need to a property owner, housing representative, or public carrier.
A Social Security Disability award letter or determination by a state Medicaid agency will generally suffice for service animals; and a letter from a psychologist, psychiatrist, or other medical health professional is generally sufficient to establish the need for an emotional support animal.
Different federal laws govern what accommodations for service and emotional support animals are required, depending on the setting. The broadest disability law, the Americans with Disabilities Act, requires places of public accommodations to allow certified service animals, but not uncertified emotional support or therapy animals. The ADA prohibits disability discrimination in a wide variety of settings, and as a general matter allows service animals to accompany their owners into most public places, including restaurants, retail stores, movie theatres, parks and museums, and the like.
The Federal Fair Housing Act (FHA) and the Air Carriers Access Act (ACAA), in contrast, require accommodations for both service animals and emotional support/therapy animals. For example, although it is common for a landlord to charge an additional security deposit for an animal, and even additional supplemental rent for occupancy of a unit by an animal, this is not permitted by the FHA if the animal is a certified service animal or an emotional support animal.
Landlords are required to provide reasonable accommodation of a tenant’s disability, and this includes allowing emotional support animals. The Department of Housing and Urban Development has said, however, that traditional animals are allowed, but exotic animals may be rejected. There should be no problem with a dog, cat, rabbit, or small bird, but snakes, alligators or exotic mammals may be restricted.
The Federal Air Carriers Access Act also covers both service and emotional support animals. Anyone planning to fly on a commercial airline should visit the carrier’s website and review their requirements, which vary from carrier to carrier. Most carriers will require pre-submission of supporting documents 48 hours or more in advance of travel. Some may require additional documentation (such as confirmation of animal behavior). For example, the American Airlines website recommends calling reservations rather than booking online so they can accommodate special seating for an animal companion. Fully trained service animals and emotional support animals may fly in the cabin at no charge (subject to qualification requirements). The American Airlines website provides additional requirements, which appear logical and designed to accommodate the individual’s needs while protecting the safety and comfort of other passengers, together with special forms and directions on submitting them.
Society has evolved such that the accommodation of service animals and emotional support animals is less controversial, especially on common carriers (airlines, trains, buses), but housing and other places of public accommodations are more problematic. It is also important to recognize that the law distinguishes between true service animals and emotional support animals; only the former must be admitted to most places of public accommodation. There has been significant abuse of the term “emotional support animal” and as a result many places of public accommodation will only entrance to allow true service animals. A person accompanied by a service or support animal should understand the legal distinctions between these two categories, carry documentation regarding the need for the animal, and be prepared to respond appropriately to any challenge that may arise.
About this Article: We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit Find an Attorney.
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