By Alessandra Stivelman
“Service Animals” and “Emotional Support Animals” are defined and dealt with differently under federal law. It is really important for an association to understand the difference, as there are restrictions imposed by federal law in regards to what an association is authorized to demand from the individual making a request for a reasonable accommodation to the association’s pet policy.
Service animals are not considered pets, and thus, cannot be refused by an association with a no-pet rule. A “service animal” is defined narrowly under the Americans with Disabilities Act (“ADA”) as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. Providing emotional support, well-being, comfort, or companionship does not constitute work or tasks for the purposes of the ADA. Thus, trained dogs are the only species of animals that may qualify as service animals under the ADA (there is a separate provision regarding miniature horses). Emotional support animals are expressly precluded from qualifying as service animals. Under the ADA, the animal need only meet the definition of “service animal” to be covered by the law. No further test or reasonable accommodation analysis should be applied.
However, dogs and other species, with or without training, and animals that provide emotional support have been recognized as necessary assistance animals under the reasonable accommodation provisions of the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act of 1973 (Section 504). The FHA prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability. One type of disability discrimination prohibited by the Act is the refusal to make “reasonable accommodations” in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling. Accordingly, an individual with a disability may have the right to have an emotional support animal in his or her home if the animal qualifies as a necessary reasonable accommodation. While emotional support animals do not qualify as service animals under the ADA, they may nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHA. Thus, the FHA requires that an association make a reasonable accommodation for persons with disabilities, which may include not enforcing a pet restriction against an individual who demonstrates the need for an emotional support animal.
In order to qualify for such an accommodation, the emotional support animal must be necessary to afford the individual an equal opportunity to use and enjoy a dwelling. Further, there must be a relationship, or nexus, between the individual’s disability and the assistance the animal provides. If these requirements are met, an association must permit the emotional support animal as an accommodation, unless it can demonstrate that allowing the emotional support animal would impose an undue financial or administrative burden or would fundamentally alter the nature of the association and/or its services. An association is not authorized to require that an animal be trained in order to grant a reasonable accommodation for a person with a disability as defined by the FHA.
By Alessandra Stivelman