What’s the difference between an emotional support animal and a service animal? Let’s start by sharing the Americans with Disabilities Act (ADA) National Network’s guidelines on what is or is not a service animal.
Service Animal vs Emotional Support Animal
The ADA National Network defines a service animal as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Examples include specific tasks such as pulling a wheelchair, alerting a person to a sound, reminding a person to take medication, or alerting someone to the onset of seizures.
Meanwhile, emotional support animals, comfort animals, therapy dogs, or any species that is not a dog are not considered service animals. The ADA National Network says, “The work or tasks performed by a service animal must be directly related to the individual’s disability. It does not matter if a person has a note from a doctor that states that the person has a disability and needs to have the animal for emotional support. A doctor’s letter does not turn an animal into a service animal.”
So What Does that Mean for Landlords?
Accommodations for Service Animals
The guidelines for service animals are pretty straightforward. Service animals are not legally considered to be “pets” and cannot be excluded even from housing with no-pet rules, nor should pet deposits apply to them. The ADA is very clear that any animal that meets the definition of “service animal” is covered by the law. However, the definition of service animal is pretty limited.
As Eisinger Law states, “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). No further test or reasonable accommodation analysis should be applied.”
As a landlord, you may ask your tenant/applicant to certify that an occupant of the property has a disability that requires an animal to assist with this particular disability. However, be careful not to ask questions that may be seen as discrimination or violating the privacy of the person with the disability. You may not ask about the nature of or the extent of the disability.
Accommodations for Emotional Support Animals
This is where it gets less well-defined! The Fair Housing Act (FHA) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability. The FHA and Section 504 of the Rehabilitation Act of 1973 (Section 504) also state that dogs and other species, with or without training, and animals that provide emotional support have been recognized as necessary assistance animals under reasonable accommodation provisions.
As explained by Eisinger Law, “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. 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.”
In other words, if a person with a disability needs a service animal to use or “enjoy” their housing, then the landlord must allow the emotional support animal as an accommodation unless they can demonstrate that it would impose undue financial or administrative burden.
Clear as mud, right?
Fortunately, the U.S. Department of Housing and Urban Development offers a little more guidance. They admit that it can be difficult for housing providers to ascertain whether an assistance animal (animal providing emotional support or other services that is not officially trained to be a “service animal”) is truly needed, especially with the recent popularity of online certifications, often from non-credible sources. HUD recommends requesting a “note from a person’s health care professional that confirms a person’s disability affecting a major life activity and related need for an assistance animal for therapeutic purposes when the health care professional has personal knowledge of the individual.”
To Sum Up
- Service Animals are always permitted, regardless of pet policies, and should have pet deposits waived as they are not “pets.”
- Emotional Support Animals and other Assistance Animals should probably be permitted, but it’s a good idea to request a doctor’s note.
- In either case, you may ask for written documentation of the person’s need for the service or support animal, but avoid asking questions about the person’s disability.
And it’s always a good idea to check your state-specific regulations. Luckily, Nolo provides a breakdown of state-specific regulations for service animals and emotional support animals.