ADVERTISING MATERIAL NEWSROOM HOME > PUBLICATIONS > PROMOTED TO FRONT PAGE > SERVICE AND EMOTIONAL SUPPORT ANIMALS: WHAT THEY ARE AND WHEN THEY MUST BE ACCOMMODATED SERVICE AND EMOTIONAL SUPPORT ANIMALS: WHAT THEY ARE AND WHEN THEY MUST BE ACCOMMODATED November 30, 2021 By Jordan M. Saner Associate, Stoll Keenon Ogden PLLC (812) 759-3852 jordan.saner@skofirm.com In the late-evening hours of October 9th, 2018, passengers on a Frontier Airlines flight from Orlando to Cleveland found themselves being hastily deplaned by Orlando police after being called to handle a situation onboard. The plane was loaded and preparing for take-off when a stowaway was discovered. This stowaway was in the form of a squirrel named Daisy, but her presence was no accident. Her owner was claiming she was an emotional support animal and, therefore, could fly in the plane cabin. Despite Frontier Airlines informing the owner that rodents were not allowed in the cabin, she refused to exit the plane. The airline contacted the Orlando police, who proceeded to remove all passengers from the flight. The woman was escorted from the plane without further incident and ultimately was able to reach her destination, without Daisy.[1] Over the course of the last decade, incidents similar to the one involving Daisy have become more common; people have claimed peacocks, penguins, turkeys, ducks, roosters, chickens, pigs, and even a kangaroo as emotional support animals.[2] People are also increasingly claiming the right to live with emotional support animals despite housing policies against having pets.[3] For example, the number of animals registered as emotional support animals with the National Service Animal Registry has grown from 2,400 in 2011 to nearly 200,000 in 2019.[4] It’s important to note that registration with the National Service Animal Registry does not automatically qualify an animal as an emotional support or service animal, which begs the question: what qualifies an animal as a service or emotional support animal? Many Americans have misconceptions about the definitions, rules, regulations, and rights associated with these categories of animals.[5] This can be problematic for business and housing owners because there are differing obligations owed to owners of service animals and emotional support animals. Definitions The Department of Justice (“DOJ”) regulations promulgated under the Americans with Disabilities Act (“ADA”) define “service animal” as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability . . . .”[6] The work or tasks performed by the service animal must be directly related to the individual’s disability.[7] Importantly, “emotional support, well-being, comfort, or companionship” are not considered “work” or “tasks” under the ADA regulations.[8] Thus, emotional support animals are not recognized and do not receive the same rights and privileges as service animals under the ADA. Animals that do not meet the definition of ADA service animals may still have some protections under the Fair Housing Act (“FHAct”) and U.S. Department of Housing and Urban Development (“HUD”) implementing regulations, which allow individuals with disabilities to request reasonable accommodations for “service animals and other types of assistance animals, including support animals.”[9] The term “assistance animal” includes animals that do work, perform tasks, assist, and/or provide therapeutic emotional support for individuals with disabilities.[10] Unlike the ADA, which restricts services animals to dogs and miniature horses, there are no restrictions on what type of animal can serve as an assistance animal, including emotional support animals, under the FHAct. With these distinctions in mind, we now address the obligations owed to the owners of these animals and the rights of owners claiming a service or assistance animal. These obligations/rights depend upon a variety of factors, such as the type of business being operated, the type of animal being utilized, and the nature of the owner’s disability. There are three primary federal statutory schemes that establish the obligations and rights of individuals with respect to service and emotional support animals and their owners: (1) the ADA; (2) the FHAct;[11] and (3) the Air Carrier Access Act (“ACAA”). Protections in Places of Public Accommodation under the ADA The ADA parameters for service animals only apply to dogs (or miniature horses)[12] trained to perform a specific task or work activity that assists their owners with their disabilities.[13] While the scope of what qualifies as a service animal under the ADA is narrow, ADA protections afforded to service animals and their owners are broad. Private entities[14] operating as public accommodations may not discriminate against individuals with disabilities and must offer said individuals the full and equal enjoyment of their public location.[15] Private entities considered public accommodations include, but are not limited to: hotels; restaurants/bars; movie theaters, stadiums/convention centers; grocery stores/shopping centers; gas stations; pharmacies; professional offices; hospitals; museums; parks, private schools; and gyms/other places of exercise or recreation.[16] When it comes to questioning an individual about his or her disability or service animal, operators of public accommodations must tread lightly. Only two inquiries may be made: (1) is the animal required because of a disability; and (2) what work or task the animal has been trained to perform.[17] There can be no request to see any documentation of the disability or training the service animal has received.[18] Animals that qualify as service animals must be allowed to accompany their owners in all places other members of the public are allowed to go.[19] Protections in Housing under the FHAct Under the FHAct, an individual with a handicap[20] may request a housing provider[21] make reasonable accommodations to its animal policies to permit the person an equal opportunity to use and enjoy a dwelling unit.[22] Requests by individuals with a disability to utilize “service animals and other types of assistance animals, including support animals” may qualify as such an accommodation under the FHAct.[23] If the animal meets the ADA definition of a service animal, the housing provider must automatically make an accommodation for the requesting individual.[24] If, however, the animal does not qualify as an ADA service animal, additional information may be considered when determining whether or not the request qualifies as a reasonable accommodation. How to determine whether an accommodation is required for a support animal under the FHAct depends partially on the observability of the person’s disability. If an individual has an observable disability,[25] a housing provider should not ask for details regarding the disability.[26] Instead, a housing provider may request information supporting that the animal provides assistance or therapeutic emotional support with respect to the individual’s disability.[27] Generally, supporting information of this nature consists of a letter or certificate provided by a licensed healthcare professional.[28] The documentation must establish a connection between the disability and the need for the assistance animal.[29] On the other hand, if an individual does not have a readily observable disability, as is often the case involving emotional support animals, a housing provider determining whether to provide an accommodation may request reliable documentation supporting the individual’s contended disability.[30] However, a housing provider cannot demand to know an individual’s actual diagnosis.[31] Once an individual with a non-observable disability has provided the necessary documentation, the housing provider may inquire about what assistance or therapeutic emotional support the animal provides with respect to the disability.[32] If an individual has established a disability and need for an assistance animal, a housing provider may also consider the type of animal in deciding whether to provide the accommodation. If the animal is an animal commonly kept in households, such as a dog or a cat or other small domesticated animal kept for pleasure, then reasonable accommodations should be granted.[33] If the individual is requesting a unique animal not commonly kept in households, the individual with a disability has the burden of establishing a disability-related therapeutic need for the unique animal.[34] A housing provider may refuse an accommodation request for an assistance animal if the specific animal requested imposes, amongst other things, an undue financial burden on the nature of the provider’s operations.[35] Protections on Airlines under the ACAA The ACAA regulates transportation of support and service animals on flights. Under Department of Transportation (DOT) regulations implementing the ACAA, airlines must allow ADA service animals to accompany passengers with disabilities and cannot deny transportation based upon the animal’s breed.[36] However, they may require documentation in the form of a completed U.S. Department of Transportation Service animal Air Transportation Form (and a DOT Service Animal Relief Attestation Form for flights 8 hours or more).[37] Unlike housing providers under the FHAct, airlines are no longer required to accommodate owners of emotional support animals. In 2021, the DOT modified its definition of “service animal” to mirror the ADA definition, such that it now includes only dogs individually trained to do work or perform tasks for the benefit of a qualified individual with a disability.[38] The regulation explicitly states “[a]nimal species other than dogs, emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals.”[39] Conclusion With the percentage of pet ownership continuing to rise, we may see more controversy surrounding the use of service and emotional support animals in the future, including a push for greater accommodations for assistance animals of all shapes and sizes.[40] Business owners, universities, landlords, home buyers and sellers, airlines, government entities, and many more must be aware of the impact of these federal statutes and corresponding regulations governing service and support animals, or they may find themselves facing serious legal consequences down the road. **** Stoll Keenon Ogden understands that these are trying times for our clients and our country. 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[1] Ezzy Castro & Clay LePard, Meet Daisy, the Emotional Support Squirrel that Delayed a Frontier Flight, ClickOrlando.com (Oct. 11, 2018), https://www.clickorlando.com/travel/2018/10/11/meet-daisy-the-emotional-support-squirrel-that-delayed-a-frontier-flight/. [2] Rachel Gillett, ‘Emotional Support Animals’ Are Turning into a Crisis for Airlines — Here Are the Most Bizarre Animals People Have Brought on Planes, Business Insider (Jan. 31, 2018), https://www.businessinsider.com/support-animals-people-have-tried-to-bring-on-planes-2018-1. [3] Farah Stockman, People Are Taking Emotional Support Animals Everywhere. States Are Cracking Down., N.Y. Times (June 18, 2019), https://www.nytimes.com/2019/06/18/us/emotional-support-animal.html. [4] Id. [5] Regina Schoenfeld-Tacher et al., Public Perceptions of Service Dogs, Emotional Support Dogs, and Therapy Dogs, 14 Int’l. J. Envtl. Res. & Pub. Health 642 (2017), https://doi.org/10.3390/ijerph14060642. [6] 28 C.F.R. § 35.104; 28 C.F.R. § 36.104. [7] Id. [8] Id. [9] U.S. Dep’t of Housing and Urban Development, Assessing a Person’s Request to Have an Animal as Reasonable Accommodation Under the Fair Housing Act, FHEO-2020-01, https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf. [10] Id. [11] Section 504 of the Rehabilitation Act of 1973, applicable to housing providers that receive federal assistance from HUD, mirrors the FHAct with respect to reasonable accommodation requests. See U.S. Dep’t of Housing and Urban Development, Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO-2013-01. [12] See 28 C.F.R. § 36.302(c)(9). [13] See supra notes 7-10 and accompanying text. [14] Title II of the ADA (and implementing regulations) also prohibits discrimination by public entities against individuals on the basis of their disabilities. 42 U.S.C. § 12132. “Public entities” include State and local governments, their departments, agencies, special purpose districts, or any other instrumentality of the State or local government. 42 U.S.C. § 12131(1). [15] 42 U.S.C. § 12182(a) (2018). [16] See 42 U.S.C. § 12181(1)(7); 28 C.F.R. § 36.104 for a full list of private entities considered public accommodations under Title III. [17] 28 C.F.R. § 36.302(c)(6). Generally, a public accommodation may not make inquiries about a service animal when it is readily apparent that the animal is trained to do work or perform tasks for an individual with a disability. Id. [18] 28 C.F.R. § 36.302(c)(6). [19] 28 C.F.R. § 36.302(c)(1); 28 C.F.R. § 36.302(c)(7). If the animal is out of control and the animal’s handler does not take effective action to control it; or the animal is not housebroken, public accommodations may request the individual remove the service animal from the premises. 28 C.F.R. § 36.302(c)(2). [20] The term “handicap” is defined as a physical or mental impairment which substantially limits one or more of such person’s major life activities; a record of having such an impairment; or being regarded as having such an impairment (a virtually identical definition to “disability” under the ADA). 42 U.S.C. § 3602(h) (2018). [21] Courts have applied the FHAct to individuals, corporations, associations and others involved in the provision of housing and residential lending, including property owners, housing managers, homeowners and condominium associations, lenders, real estate agents, and brokerage services. See Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act, Q and A 2 (May 17, 2004), https://www.hud.gov/sites/documents/huddojstatement.pdf. Limited exceptions exist under the FHAct that are beyond the scope of this article. See id. for those requirements. [22] 42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. § 100.204(a). [23] See supra notes 9-10 and accompanying text. [24] The standard for determining whether an animal is a “service animal” under the ADA or FHAct is the same. [25] Observable impairments include blindness, deafness, mobility limitations, and other types of impairments with observable symptoms such as intellectual impairments, neurological impairments, mental illness, or other diseases or conditions that affect major life activities or bodily functions. See 24 C.F.R. § 100.21. [26] U.S. Dep’t of Housing and Urban Development, Assessing a Person’s Request to Have an Animal as Reasonable Accommodation Under the Fair Housing Act, FHEO-2020-01, https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf. [27] Id. [28] Id. Licensed healthcare professionals include physicians, optometrists, psychiatrists, psychologists, physician’s assistants, nurse practitioners, or nurses. Id. [29] Id. [30] Id. Information supporting the existence of a disability may take the form of a federal, state, or local government agency determination of a disability, receipt of disability benefits, eligibility for housing assistance or a housing voucher because of a disability, or information confirming the disability from a healthcare professional. Additionally, A letter from a licensed health care professional who provides remote services is sufficient to confirm an individual’s disability or need for an assistance animal [31] Id. [32] Id. [33] Id. Reptiles, barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals. Id. [34] Id. [35] Id. [36] 14 C.F.R. § 382.72. Airlines may make the same two inquiries under the ACAA that public accommodations may make under the ADA when determining whether an animal qualifies as a service animal. 14 C.F.R. § 382.73(a)(1). Airlines may also look at the behavior of the animal (aggressiveness towards other animals and people, ability to control defecation/urination) and for physical indicators such as a harness or vest to determine if the animal is a service animal. Id. at (a)(2)-(3). [37] 14 C.F.R. § 382.75(a), (b). [38] See 14 C.F.R. § 382.3. [39] Id. [40] Joshua D. Carroll et al., Laws and Ethics Related to Emotional Support Animals, 48 J. Am. Acad. Psychiatry & L. (Nov. 4, 2020), http://jaapl.org/content/jaapl/48/4/509.full.pdf. RELATED ATTORNEYS Jordan M. 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