The issue of service animals and emotional support animals is one that I come across often in my Coral Gables practice. Not a week goes by without a call from someone seeking a letter to travel with their animal.
In Miami, at least, it seems people are taking their animals everywhere they go.
In the last 5 years, there’s been a significant increase in furry friends in places like grocery stores, spas, and airplanes cabins. And no one dares ask the person about the animal for fear of being accused of discrimination.
It’s made me wonder: Are these legitimate service animals?
So I did a little research and here’s what I learned. Service animals are legitimate and protected under various laws, most notably Title III of the Americans with Disabilities Act (ADA) in public places. According to the ADA, “dogs and miniature horses that are individually trained to do work or perform tasks for people with disabilities,” are considered service animals. Emotional support animals (ESA) aren’t considered “service animals” under the ADA.
But how to tell the difference?
It turns out that you can ask someone two questions about the animal to determine if it’s covered under the ADA. You just can’t ask about the person’s disability. ADA states that “a public accommodation may ask if the animal is required because of a disability and what work or task the animal has been trained to perform.” Good questions you can ask to prevent people from misrepresenting emotional support animals as service animals are:
- Is this your pet?
- What service is the animal trained to provide?
If they answer “yes” that the animal is a pet, or they can’t explain the service the animal provides, then it isn’t protected by the ADA. In fact, 13 states, including Florida, have passed laws making it illegal to pass pets off as ESA or service animals. Asking these questions for clarification helps protect the people that legitimately have service animals – win/win!
Easy enough to follow, right?
Well, here’s where it gets confusing with service animals and emotional support animals.
The Fair Housing Act (FHA) acknowledges both service animals and ESA, and treat ESA as service animals. The FHA goes as far as to state that “an assistance animal is not a pet.” However, this law also states that “unusual or exotic animals” (e.g. snakes, other reptiles, spiders, ferrets, monkeys, rodents, etc.) are not required to be accommodated. On 30th November 2020, the federal Department of Transportation published a new rule that modifies the Air Carrier Access Act as it pertains to ESA. In a nutshell…
- Only service animals are allowed in the passenger cabin.
- Only dogs are considered service animals.
- Psychiatric service animals no longer require additional documentation by air carriers (i.e. will be treated like any other service animal)
- Federal DoT forms will be required for any service animal.
- ESAs are no longer considered service animals and will be treated as pets, and must be stowed in the live cargo bay of the aircraft.
- Effective date of new rule is TBD.
What should you do if you have or are considering an ESA?
1.Get the animal well trained.
It looks like ESA will not be allowed on airplane passenger cabins, but they are still recognized for the purposes of housing under the FHA. All the laws mentioned require that service animals and emotional support animals are trained, well behaved, do not cause a disruption, and are housebroken. If the animal fails to comply with any these requirements, isn’t leashed/tethered, presents a health hazard, or can’t be controlled, then it’s legal to ask that the animal is removed from the premises of a public place. Also, make sure you get documentation that your or ESA completed an accredited training program for service animals.
2. Have your therapist write a letter supporting your need for an ESA.
It has to be a mental health professional licensed to practice in the state where you live that has been treating you for a while or one that you will continue to work with for some time. Otherwise, the letter won’t hold up if you’ve only seen the therapist once or twice.
3. Get a psychological evaluation.
Sometimes mental health professionals are hesitant to write an ESA letter for clients because it’s hard to determine who really needs an ESA vs who wants an ESA. A psychologist can conduct a psychological evaluation to determine if a) you have a qualifying disability, and b) whether an ESA or service animal will help alleviate your symptoms. With a psychologist’s report and recommendations, your therapist may feel more confident about writing an ESA letter for you.
A quick internet search will turn up results for getting an ESA letter fast online for very cheap. However, landlords, etc. have become very savvy about this. They are increasingly and successfully contesting such letters. A therapist that provided an ESA letter to an undercover reporter in 2016 was singled out by California’s Board of Behavioral Sciences as recently as May/June 2019 when a landlord filed a compliant.
There’s a lot of confusing information about ESA and service animals out there, and even mental health professionals aren’t completely sure about this intersection of law, disability, and mental health. Hopefully, this helped separate fact from fiction about emotional support animals and service animals. If you still have more questions, you can reach us at (305) 501-0133 or click here to schedule a free 20-minute Clarity Consult.