By David F. Kramer
The working dog. The mention of this term conjures up images of farm dogs hard at work on the homestead, whether herding cattle, keeping a flock of sheep safe from predators, or even just resting by the collective campfire at the end of the day.
While there are still dogs that perform these duties, the business acumen of the working dog has changed in modern times. Dogs are uniquely useful in helping humans whose activities are limited by physical, mental, and emotional disabilities. These pets generally fall into three distinct categories: service animals, therapy animals, and emotional support animals-and each of these working pets are allowed different rights and responsibilities by federal law. This article will explore the legal idiosyncrasies of both service and emotional support animals.
What is a Service Animal?
Under the Americans with Disabilities Act (ADA), a service animal is defined as an animal (most often a dog) that has been individually trained to work or perform one or more tasks for an individual with a disability. The task must be related to this particular disability.
While we most often associate service dogs with larger breeds like German Shepherds or Labs, there is no restriction on the size or breed of a service animal, provided it can competently do its assigned task.
“Doing work” or “performing tasks” is defined as the animal taking a specific action when needed to assist the person with a disability. These tasks can be both physically or mentally needed. For example, not only do guide and hearing dogs help the blind and deaf, but other service animals might inform diabetics when their blood sugar reaches dangerous levels, detect when their owners are having a seizure, or even simply remind them to take their prescribed medications.
While dogs and other service animals must be trained to be considered legitimate, there is no government imposed standard of training. Owners of service animals are free to train them themselves, although technically, a service animal is not certified until it has “finished” its training. However, what is considered “trained” is a pretty nebulous term, and a handful of states also certify dogs as service animals as they are still being trained.
The Laws That Govern Service Animals
Service animals, like pets, must be vaccinated, and kept under control by their handlers at all times.
The laws governing where service animals are permitted are handled by three government entities: the Americans With Disabilities Act (ADA) when it comes to definition and purpose; Housing and Urban Development (HUD) when it comes to living situations; and the Federal Aviation Administration (FAA) when it comes to airline travel.
While the definition and usage of service animals is covered under federal law, specific laws pertaining to them differ from state to state. These local laws generally come under a state’s code and are broken down into about 10 categories.
Application: most states include laws pertaining to guide, hearing, and service animals, but a few apply only to guide and hearing animals.
Accessibility: defining public and private locations where service animals are permitted, as well as places they aren’t due to health, religious or other reasons.
Interference: outlining the legal actions that can be taken against people who interfere with a service animal (these are generally misdemeanors).
Housing: the rights of disabled persons to live with service animals (these generally pertain to not having to pay any additional monies to a landlord or group).
Licensing and Fees: unlike pets, many states waive licensing and related fees for service animals.
Identification: whether a service animal needs to identify with a vest or special signage.
Misrepresentation: penalties against someone who tries to falsely identify themselves as disabled.
Trainers: all of the privileges entitled to the owner of a service animal are also entitled to trainers.
“White Cane Laws”: these are motor vehicle laws that many states have enacted that offer special care and precautions towards the blind and disabled.
Injury to Dog/Penalties: criminal penalties, fines, and potential jail sentences for people who would injure or kill a service animal. As mentioned above, interference is a misdemeanor crime, but injury or death of an animal could be increased to a felony under some states’ laws.
The ADA is fairly liberal when it comes to declaring your animal a service dog. In fact, under the Act there is no mandatory registration required. In many ways, it’s like the criminal justice system; an animal is presumed to be a service animal until proven otherwise. Landlords, business owners, and even the general public will find trying to limit a service animal’s access to a location or situation to be a difficult fight.
Service animals are generally permitted to accompany their handlers wherever they go, such as restaurants (including food prep areas for cafeterias, shelters and eateries with a self-service line), hotels, and public or private businesses and facilities.
Are Some Breeds Excluded from Being Service Animals?
Interestingly, the ADA even extends service animal specifications for breeds of dog that people might consider dangerous, including ones that have been banned in some areas. If a municipality has banned pitbulls, for example, a pitbull that is declared a service animal is still technically permitted, but a protracted legal challenge could very well end up in the banning of such an animal in the name of public safety.
What is an Emotional Support Animal?
Emotional Support Animals (ESAs) are defined as animals that provide therapeutic benefits to their owners; they do not need any sort of special training because they aren’t required to complete specific tasks. The benefits they provide are mostly emotional, and help to ease the symptoms of mental or emotional disabilities, such as PTSD, autism, bipolar disorders, depression, panic attacks, social phobias, stress, and others. Despite the fact that ESAs are often mistakenly lumped into the same category as service animals, they are given far fewer protections by federal law.
How to Get a Prescription for an Emotional Support Animal
An emotional support animal can be “prescribed” by a mental health professional through a fairly rigorous process. A licensed therapist needs to submit a letter outlining a client’s condition as defined by the Diagnostic and Statistical Manual of Mental Disorders (DSM IV and DSM V). A letter and prescription can offer a bit more in the way of credibility for an ESA, but like a service animal, no official documentation is required.
The Laws That Govern Emotional Support Animals
ESAs are supported on a federal level by the Air Carrier Access Act (ACCA) and the Fair Housing Act (FHA), but have very little enforceable law to fall back on in other situations. So, unless you’re trying to keep an ESA in your home or take it somewhere by airplane, you may very well be out of luck. Emotional Support Pets are not granted access to places of public accommodation (where service animals would be allowed) and may face challenges if taken almost anywhere animals aren’t normally permitted.
The Fair Housing Act does address the right to be able to live with your ESA. Technically, only two requirements need to be satisfied: Does the person seeking to live with this animal have a disability, and does the person making this request require the assistance of an ESA to complete this or other tasks?
These types of requests are best made prior to signing a lease and should be in writing.
A note from a person’s doctor is all that needs to be provided in most cases. A landlord can request further documentation on a particular disability, as well as the need for the assistance of an ESA for said disability, but the particulars of a person’s individual status need not be provided. In fact, it is against the law for a landlord to press an applicant on the nature of his or her disability.
A landlord may not “unreasonably delay” granting a request for an ESA, but the courts have not specified a time period in which these must be granted, so the hardship generally falls back onto the renter. Any fees and restrictions that a landlord would normally apply to a pet owner cannot be enforced for an ESA, and the animal generally is permitted access anywhere on a rental property where people are permitted. However, tenants with ESAs may still be held financially responsible for damage caused by their animals, whether the damage occurs in their rental properties or in the common areas.
How to Register an Animal as an Emotional Support Animal
Any number of online organizations claim to be able to register an animal as an ESA-though many of them seem to differ on what sort of documentation is required for registration. Some groups require a note from a doctor or therapist, while others will match you with an affiliated therapist or doctor for this purpose; in some cases, you can be “evaluated” via e-mail-for a cost. Registration will sometimes be packaged as a kit that includes accessories such as therapy letters, vests, IDs, patches, and more.
If a long distance or online evaluation and diagnosis seems a little dubious or too good to be true, you may want to reconsider using organizations that offer these services. Do your research before you pay. The documentation they provide may not be accepted as legal.
Most organizations that don’t have a financial interest in the registering of ESAs see little need for all the accessories. It doesn’t seem to make much sense to spend money on ID cards, signage, and private registries that have no law backing them up, just for the sake of an ESA looking “official.”
The Future of ESAs
Emotional support animals are a fairly new wrinkle in the blanket of service animals, and the practice is sure to face many legal challenges in the future.
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