This publication discusses emotional support animals and their treatment under the law in the context of housing and air travel.
The right of an individual with a disability to an emotional support animal depends the setting in which the right is asserted. Different state and/or federal laws will apply to different situations.
Under federal law, emotional support animals are covered by the FHAA and the ACAA.
What Is An Emotional Support Animal?
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). 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:
- 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?
- 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?
An emotional support animal is not a pet. An emotional support animal is a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability. The person seeking the emotional support animal must have a verifiable disability (the reason cannot just be a need for companionship). The animal is viewed as a “reasonable accommodation” under the Fair Housing Amendments Act of 1988 (FHA or FHAct) to those housing communities that have a “no pets” rule. In other words, just as a wheelchair provides a person with a physical limitation the equal opportunity to use and enjoy a dwelling, an emotional support animal provides a person with a mental or psychiatric disability the same opportunity to live independently. Most times, an emotional support animal will be seen as a reasonable accommodation for a person with such a disability. Failure to make reasonable accommodations by changing rules or policies can be a violation of the FHA unless the accommodation would be an undue financial burden on the landlord or cause a fundamental alteration to the premises.
The United States Department of Housing and Urban Development (HUD) uses the term “assistance animal” to cover any animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. (FHEO Notice: FHEO-2013-01 at page 2). An emotional support animal is one type of assistance animal allowed as a reasonable accommodation to a residence with a “no pets” rule.
Does an emotional support animal need specialized training?
HUD defines an emotional support animal as an animal that “provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” (FHEO Notice: FHEO-2013-01 at page 2). These animals do not need specialized training. In fact, HUD states that, “[f]or purposes of reasonable accommodation requests, neither the FHA nor Section 504 requires an assistance animal to be individually trained or certified.” (FHEO Notice: FHEO-2013-01 at page 2). While training is not required for an assistance animal, one court has stated that an assistance animal must facilitate the disabled person’s ability to function.
What documentation do I need to provide to have an emotional support animal/assistance animal?
If a person needs an emotional support animal to help alleviate the symptoms of a disability, he or she must first make the request to his or her landlord. HUD states the following in its FHEO Notice: “Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal.” (FHEO Notice: FHEO-2013-01 at page 3). Most sources indicate that the request should be in writing and explain how the reasonable accommodation helps or mitigates symptoms of the disability. While the tenant or owner does not need to disclose the disability, he or she will need to provide documentation from a doctor or other health professional. According to HUD, a physician, psychiatrist, social worker, or other mental health professional can provide documentation that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. (FHEO Notice: FHEO-2013-01).
Can I take an emotional support animal to the same places that I can take a service animal?
Under ADA regulations that became effective on March 15, 2011, there are no protections for emotional support animals in terms of access to public accommodations and public entities. The DOJ has stated that emotional support animals are not protected as service animals under these regulations, and has implied that emotional support animals can no longer be protected as reasonable modifications in these contexts.
The Fair Housing Amendments Act
If My Housing Complex Has A “No-Pets” Policy, Must My Landlord Or Homeowners’ Association Allow Me To Keep My Emotional Support Animal In My House?
Housing discrimination against persons with disabilities is prohibited both under federal law in the FHAA. Under the FHAA, landlords and homeowners’ associations must make reasonable accommodations for people with disabilities. Reasonable accommodations are exceptions to rules or policies necessary in order to allow persons with disabilities to have an equal opportunity to use and enjoy a dwelling as compared to persons without disabilities. The obligation to make reasonable accommodations includes a requirement that housing providers make exceptions to a “no-pets” policy to permit persons with disabilities to use and live with either a service or emotional support animal.
In the context of housing, the federal government uses a more inclusive definition of what types of animals must be allowed in housing as a reasonable accommodation under the Fair Housing Act. The broader term used in housing is “assistance animal.” An assistance animal is “an animal that works, provides assistance, or performs tasks for the benefit of the person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a persons’ disability.” This means that, in addition to service animals, emotional support animals and animals that provide some type of disability-related assistance are permitted as a reasonable accommodation in housing. Also, assistance animals can be any type of animal, not just a dog or miniature horse.
For example, a cat that provides emotional support to a person with a disability could be permitted as a reasonable accommodation in housing because it is an assistance animal.
There is no requirement that the animal be specially trained or certified; however, the animal must provide a disability-related benefit to the individual with a disability.
If the animal poses a direct threat to others, would cause substantial physical harm to the property of others, imposes undue financial or administrative burden to the landlord, or fundamentally alters the nature of the services provided by the landlord, then the landlord may refuse to allow a service or support animal. Direct threat must be determined by individual assessment of the animal, not stereotypes about the breed. Owners must ensure that their service or emotional support animal complies with state and local animal control laws and is not a danger or nuisance to the community.
Can my landlord or HOA ask for proof of my disability or that my animal is an emotional support animal?
If you are seeking a reasonable accommodation for emotional support animal for housing, a landlord or homeowner’s association may ask for documentation that you have a disability and that you have a disability-related need for the animal. However, the landlord should not request documentation if your disability and your disability-related need for the service or support animal is obvious or the landlord otherwise should have known about the disability and need. In addition, there are limits on how much information a housing provider can ask for. A housing provider “may not ask an applicant or tenant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person’s physical or mental impairments.”
You may be asked to provide a letter from your primary care physician, social worker, psychiatrist, or other mental-health professional that the animal provides assistance or benefit directly related to your disability.
Can a landlord make me pay a fee to keep an emotional support animal?
A housing provider may not require an applicant or tenant to pay a fee or a security deposit as a condition of allowing the applicant or tenant to keep the assistance (emotional support) animal. However, if the individual’s assistance animal causes damage to the applicant’s unit or the common areas of the dwelling, at that time, the housing provider may charge the individual for the cost of repairing the damage if the provider regularly charges tenants for any damage they cause to the premises. However, the landlord should only charge for excessive damage beyond what might be considered ordinary wear-and-tear.
What other areas of my housing complex can I take my emotional support animal/assistance animal?
HUD indicates that an assistance animal is allowed “in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.” (FHEO Notice: FHEO-2013-01 at page 3). This would generally include a tenant’s residence and tenant common areas of the building (for example, a party room open only to tenants and their guests, but not members of the public). If there is an area of the building open to members of the public, some sources indicate that emotional support animals can be excluded (but service animals must be allowed. See pages 4 and 5 of http://www.disabilityrightsnc.org/sites/default/files/SelfAdvocacyPacket-Animals%20in%20Housing.pdf for more examples). One federal district court case indicated that a reasonable accommodation for an assistance animal does not provide “unrestricted access” for the animal.
Can a landlord or housing provider ban my emotional support animal/assistance animal based on breed?
According to HUD, “[b]reed, size, and weight limitations may not be applied to an assistance animal.” (FHEO Notice: FHEO-2013-01 at page 3). Instead, a housing provider may only determine if the specific assistance animal in question poses a direct threat to the health and safety of others. This determination of a “direct threat” must be based on “individualized assessment that relies on objective evidence about the specific animal’s actual conduct.” (FHEO Notice: FHEO-2013-01 at page 3). It may not be based on fears about a certain type of animal or evidence from damage done by previous animals of the same type. For example, if a dog has been previously declared a dangerous dog, this may indicate that the dog poses a direct threat in an individualized assessment. However, breed alone will not result in this determination. This reasoning by HUD has been upheld in at least two U.S. district courts, which can be accessed here.
An issue sometimes arises where a housing provider/landlord’s insurance company has restrictions on breeds of dogs in the insured’s policy. The insurance company may label certain breeds of dogs as “dangerous” in the policy. A memorandum issued by the Office of Fair Housing and Equal Opportunity (FHEO) issued some guidelines to directors on how to handle this issue in cases of discrimination. The memo reiterates that each reasonable accommodation determination must be made on a case-by-case basis. An accommodation is considered unreasonable if it imposes an undue financial and administrative burden on a housing provider’s operations. The memo then states:
If a housing provider’s insurance carrier would cancel, substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, HUD will find that this imposes an undue financial and administrative burden on the housing provider.
This claim must then be substantiated with the insurance company directly and comparable insurance coverage must be considered. According to the memo, if the insurance company has a policy that does not have an exception for assistance animal, an investigation may be launched against the insurance company for potential disability discrimination. For more on this particular issue, see http://www.fhcwm.org/uploads/files/reports/HUD_Memo_-_RA_Breed_Restrictions_Insurance.pdf.
Can the landlord charge me a pet/security deposit for my emotional support animal/assistance animal?
Based on statements by HUD, it appears that a housing provider may not charge a “pet fee” for an assistance animal/emotional support animal. These animals are not pets and cannot be subject to pet fees. HUD specifically states the following:
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.
(FHEO Notice: FHEO-2013-01 at page 3). Most disability law experts feel that requiring a deposit would be the equivalent of charging an advance damage deposit for someone in a wheelchair. While a landlord may be able to recoup reasonable fees for damage done after the fact by the tenant and his or her emotional support animal, an initial security deposit may go against the purpose of the Fair Housing Act. In one federal district court case, a court found that a tenant could proceed with a disability discrimination case where a housing provider charged a fee for untrained assistance animals like emotional support animals, but waived the fee for trained assistance animals like guide dogs.
Does a tenant have to clean-up after his or her emotional support animal/assistance animal? What about damage done by the assistance animal?
According to HUD, if it is the policy to charge tenants for damage to the tenant’s dwelling unit beyond reasonable wear and tear, then a housing provider may require a tenant to cover the costs for repairs due to damage by the tenant’s assistance animal. This includes damages to the dwelling and common areas. (FHEO Notice: FHEO-2013-01 at page 3, footnote 6). The key here is that both disabled and non-disabled tenants must be treated on equal footing. If damages are never assessed for pets of non-disabled tenants, then it may be problematic to only charge for damage done by assistance animals. There appears to be only one court case that truly considered this issue. Woodside Village v. Hertzmark, 1993 WL 268293 (Conn. 1993) (unpublished). The court found there that the landlord did not fail to properly accommodate a tenant’s disability after the tenant was evicted for his demonstrated inability to comply with the plaintiff’s pet policy,” which included cleaning up after the dog and toileting the dog in a designated area.
Note that there may be an issue of a tenant who becomes unable to properly care for his or her emotional support animal. If a tenant is neglecting his or her service or emotional support animal and it rises to a level where the animal is endangered, then it may become a criminal matter. Service and emotional support animals are not exempt from state animal neglect laws. If any animal is being neglected, local law enforcement or animal control can intervene. Moreover, a tenant would also be subject to all the other provisions of the lease, such as maintaining his or her residence in a sanitary manner.
Can a person have more than one service or emotional support animal?
While there do not seem to be any cases dealing with the issue of multiple emotional support animals, the basic requirements for this reasonable accommodation would still be the same. In other words, if a person were claiming the need for multiple emotional support animals, then he or she would need documentation supporting this need from his or her physician or medical professional. The practitioner would need to provide documentation that each support animal alleviated some symptom of the disability.
Can animals besides cats and dogs act as emotional support animals/assistance animals?
Yes, an assistance animal is not limited to a cat or dog. HUD specifically states that “[w]hile dogs are the most common type of assistance animal, other animals can also be assistance animals.” (FHEO Notice: FHEO-2013-01 at page 2). Again, the assistance animal will undergo an individualized assessment to determine whether the assistance animal in question poses a direct threat to the health and safety of others. A wild or exotic animal that poses a greater risk of attack or disease to other residents could be denied based on this individualized assessment. It should be noted that a case in 2015 considered the use of a miniature horse as an assistance animal under the FHA and a case in 2012 dealt with a guinea pig as an assistance animal (find links to these cases here).
Can I bring my emotional support animal/assistance animal to university or on-campus housing?
A couple of courts have dealt with this issue. Many college campuses have “no pets” rules for their housing. One case said that on-campus housing meets the definition of “dwelling” under the Fair Housing Act. Thus, that college was required to make reasonable accommodations for disabled students under the Fair Housing Act in its on-campus housing. Many colleges and universities have now adopted policies for the use of assistance animals in housing.
What about the emotional support animals/assistance animals of my guests?
HUD does not cover this issue specifically in its notice to housing providers. However, the underlying purpose of the FHA is provide an equal opportunity to use and enjoy housing regardless of disability. If a tenant cannot have a particular guest over who uses a service or assistance animal, then the tenant may be deprived of the ability to use and enjoy his or her dwelling based on the presence of a disability. There do not yet appear any published legal cases that have reviewed this issue. In 2011, the United States District Court for the District of Nevada entered a consent decree (a settlement of a lawsuit where a party agrees to take an action without admitting liability) on a this issue. The complaint in the underlying case alleged that the defendants declined to allow a friend of their tenants who uses a service animal to visit the tenants’ apartment. The defendants then evicted the tenants based on the service animal’s presence in the apartment.
Can I take my emotional support animal with me on an airplane?
With regards to the Air Carrier Access Act (ACAA), passengers who wish to bring an emotional support animal onto a flight may be required to produce a note, less than one year old, signed by a licensed mental health professional, stating that he or she has a recognized psychiatric disability that requires the use of an emotional support or psychiatric service animal.
The U.S. Department of Transportation (DOT) has provided a form for filing disability-related complaints with air carriers. DOT regulations for airlines specify that for air travel, a service or emotional support animal is “solely the responsibility of the passenger with a disability whom the animal is accompanying.” Exotic animals, such as snakes or spiders, do not have to be accommodated at all.
Complaints and lawsuits
What Do I Do If I Have A Problem Because Of My Emotional Support Animal?
If you are wrongfully discriminated against because of your service animal by a business or public accommodation, you can file a complaint with the Department of Justice. If the complaint is against the government or a private entity receiving federal funding, then the complaint must be received within 180 days of the discriminatory incident.66 There is no deadline for filing a complaint against a place of public accommodation under the ADA that does not receive federal funding, but it is best to file a complaint as soon as possible. Additional information on how to file a complaint with the Department of Justice can be found at ada.gov/t3compfm.htm, or through the ADA Information Line at (800) 514-0301 (voice); (800) 514-0383 (TTY).
If a landlord, condominium association or other housing provider refuses to allow your service or emotional support animal, you may file a complaint with U.S. Department of Housing and Urban Development (HUD) under the Fair Housing Amendments Act within one year after the alleged discrimination. To file a complaint with HUD, you can call 1-800-669-9777, complete an online complaint form available at www.hud.gov, or mail a completed complaint form or letter.
Alternatively or in addition to filing a complaint with the DOJ or HUD, you can file suit in state or federal court for injunctive and declaratory relief under federal or state law. Money damages may be available under state law. Lawsuits must be filed within two years after the discriminatory incident.
If you file a complaint or a lawsuit because you and your animal were denied access to housing or public accommodation, a court may require proof that your animal meets the legal definition of a service or emotional support animal. Even though an individual with a trained service animal is not required to carry proof that their animal is a service animal when visiting places of public accommodation, it may be helpful to have a letter from your doctor, social worker, or mental health professional.
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