Have you ever met a therapy rabbit? Or a therapy pig? No? You might.
Emotional support animals are meant to provide certain individuals with a therapeutic outlet for their disabilities. There has been an explosion in recent years of the number and species of animals which are represented as “emotional support” companions, and the unwary need to know the difference between “service” animals and “emotional support” animals.
Landlords may be surprised to learn that, under Title II and III of the ADA, service animals are limited to dogs. There is no provision in the ADA for “emotional support” or “therapy” animals. Service animals require extensive – and very expensive – training in order to be classified as such. A service animal must be allowed to accompany the handler to any place in a building or facility where members of the public, program participants, customers, or clients are allowed. Even if the business or public program has a “no pets” policy, it may not deny entry to a person with a service animal. Service animals are not pets. So, although a “no pets” policy is perfectly legal, it does not allow a business to exclude service animals. If a tenant requests a reasonable accommodation for a service animal, a landlord is required to allow it.
Currently, there is no national registry for service animals which means that it is very easy for a tenant to “counterfeit” a service animal for themselves. The internet has made it easy for individuals to buy service dog vests online at low cost and the landlord or business owner usually is unable to tell the difference.
Conversely, “emotional support” or “therapy” animals are not recognized under the ADA. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. Even though some states have laws defining therapy animals, these animals are not limited to working with people with disabilities and, therefore, are not covered by federal laws protecting the use of service animals.
The classification of “emotional support” or “therapy” animals, as distinguished from service animals, is very confusing for many people. Although not recognized under the ADA, 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 a pet according to the U.S. Department of Housing and Urban Development (HUD.) The only other legitimate recognition for “emotional support” or “therapy” animals comes from the Air Carrier Access Act which does allow passengers to bring self-designated “emotional support” pets onboard an aircraft and into the passenger cabin.
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. HUD’s requirement that a tenant submit “reliable documentation” isn’t as straightforward as it might sound. The internet is teeming with so-called “providers” of “certification” for emotional support animals and these services issue official-looking certificates for a price. This has served to muddy the waters and landlords need to be wary of the type of documentation submitted to them by tenants. It is reasonable to interpret “reliable documentation” as implying some sort of recommendation from a mental health provider or physician 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.
The increase in counterfeit service animals and emotional support animals also has created a real danger to the public. There have been several incidents, including one on Delta Airlines, where fake service dogs have injured people and other animals and the lack of any regulation makes it very difficult to control these situations. Several states have enacted laws to regulate legitimate service and emotional support animals and Massachusetts is currently considering a law of its own. Without such legislation, there is very little legal recourse which can be taken against the owners of counterfeit service and emotional support animals. Landlords, therefore, must be vigilant when accepting documentation from tenants.
Flynn Law Group has the experience and expertise to assist you if you are noticing these issues at your property. If you have any questions or would like further assistance, please call the office directly at 617-988-0633 or by email at firstname.lastname@example.org