The laws permitting service and emotional support animals (ESA’s) to accompany their owners only apply to people who have a physical or mental disability. Someone who thinks they need an “emotional support animal” because they are depressed, stressed, lonely, suffering from PTSD, or having emotional problems, but who has not been diagnosed by a health care provider as being mentally disabled, is not entitled to the legal protections of the service animal and ESA laws. A health care provider has to make the diagnosis. This is by far the most misunderstood aspect of the law regarding ESA’s.
What is a “disability”?
A disability is “a physical or mental impairment that substantially limits a major life activity” such as caring for oneself, working, performing manual tasks, lifting, bending, eating, sleeping, breathing, walking, standing, reading, hearing, concentrating, thinking, hearing, communicating. These are only examples of major life activities. There are many others.
Service animals v. emotional support animals– they are not the same
A service animal is one that has been individually trained to a perform specific task for a person with a disability. The task must help the person cope with the disability. The animal does not have to be trained by a professional trainer but may be trained by the owner.
An emotional support animal (ESA) is an animal whose presence provides emotional support, comfort or companionship for a mentally disabled person but is not individually trained to perform any task related to the disability.
Service and ESA’s are never required to be certified, registered or licensed
Contrary to popular belief, service and emotional support animals are not required to be certified, registered or licensed by any agency or authority, although there is a plethora of online companies that will—for a price—“certify” or “register” animals. These companies sell certificates, vests, and other paraphernalia without requiring any documentation from a health care provider. None of these things is needed because service animals and ESA’s are not required to wear anything that identifies them as service animals or ESA’s, and their owners are not required to have any kind of ID, letter, certificate, or anything else.
All animal control laws still apply to service and ESA’s
All state and local animal control laws still apply to service and emotional support animals, including rabies vaccination requirements, city registration/licensing ordinances, tethering and barking ordinances, dangerous dog laws, animal cruelty laws, ordinances prohibiting dogs in beds of pickup trucks, and leash laws.
Penalty for falsely representing that a pet is a service animal
There is no penalty under the Americans with Disabilities Act for falsely representing that a pet is a service or emotional support animal. This has led to widespread abuse by pet owners taking advantage of this fact and bringing their pets into establishments that do not allow animals. In Texas it a misdemeanor to falsely represent that an animal is a trained service animal. The penalty is a fine up to $1,000 and 30 hours of community service at a facility that helps people with disabilities.
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PLACES OPEN TO THE PUBLIC (ADA Title III)
A service dog or miniature horse must be allowed to accompany its owner into any place open to the public. This includes grocery stores, restaurants, shops, hotels, hospitals, offices, gyms, theaters, hotels, banks, golf courses, zoos, and pretty much all other places you can think of. If non-disabled people are allowed to enter the premises, so are service animals (with a few very limited exceptions.)
No emotional support animals are allowed. Only trained service dogs and miniature horses are allowed to accompany a disabled person into places open to the public.
The disabled person may only be asked two questions: 1) is the animal required because of a disability, and 2) what tasks is the animal trained to perform? The facility is not allowed to ask for any more information or request any documentation of the disability or animal training. The dog is not required to wear a vest and the owner is not required to have a letter, ID, or certificate of any kind.
Service animals must be housebroken and under control. If the dog jumps up on people, barks, runs around, pees indoors, or otherwise misbehaves, the disabled person and his or her dog may be ordered to leave. The facility may require the dog to be on a leash or in a harness unless it would interfere with the dog being able to perform its tasks. Even then, it must still be under control at all times.
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SERVICE ANIMALS ON AIRPLANES (Air Carrier Access Act)
Only trained service dogs are allowed. No emotional support animals. The airline may not restrict dog breeds. Dogs in training qualify.
Rules. The service dog must be leashed, housebroken, not disruptive, and not a threat to health or safety. The dog must be on the person’s lap or foot space and must not encroach into another passenger’s space. The airline may require the dog owner to submit a completed Department of Transportation service animal form and may require 48 hours advance notice if the reservation is made at least 48 hours before the flight. The airline may not require someone with a service dog to check in early. The disabled person and service dog must be given a bulkhead seat if it is requested.
Determination by the airline that the dog is eligible. To determine if a dog is eligible to fly, the airline may: 1) make the two inquiries mentioned above (is the dog needed because of a disability and what tasks is the dog trained to perform), 2) observe the dog’s behavior, or 3) look for indications that the dog is a service dog, such as a vest or harness.
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SERVICE ANIMALS ON BUSES, TAXIS, UBER, ETC. (ADA Title III)
Only trained service animals are allowed. No emotional support animals. A transportation entity must modify its policies and procedures to allow service animals unless it would pose a risk to health or safety or “fundamentally alter the nature of its services. The animal must be housebroken, under control and not disruptive.
The disabled person may only be asked two questions: 1) is the animal required because of a disability, and 2) what tasks is the animal trained to perform? The transportation entity is not allowed to ask for any more information or request any documentation of the disability or animal training. The dog is not required to wear a vest and the owner is not required to have a letter, ID, or certificate of any kind.
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SERVICE ANIMALS IN THE WORKPLACE (ADA Title I)
Employers with 15 or more employees must provide “reasonable accommodations” for disabled people unless it would cause undue hardship or a threat to health, safety or welfare. The EEOC has said that a “reasonable accommodation” may include allowing a service animal. Arguably any species of animal may qualify. Employers with fewer than 15 employees are not required to allow service animals.
Emotional support animals may be a reasonable accommodation. There is no requirement in the EEOC rules that an animal must be individually trained as a service animal. Thus, ESA’s may qualify, although I had a case where this was disputed by an employer.
Rules The disabled person must be qualified for the job. The employer is allowed to inquire about the disability and how an animal would help the person do the job. The employer may also require the disabled person to undergo a medical examination to determine his or her ability of to do the job. All animals must be housebroken and under control. The employer may require a leash or harness unless it would interfere with the animal performing its tasks, but the animal must still be controlled by verbal commands.
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ANIMALS IN HOUSING (Fair Housing Act)
Housing providers must allow “assistance animals.” Housing providers include landlords, HOA’s, cities, property rental agents, zoning ordinances, etc. Assistance animals are: 1) trained service dogs, and 2) “support animals,” which include emotional support animals and trained or untrained animals other than dogs.
“Support animals.” There are two types of support animals:
1) “Common household animals” qualify as support animals. These include animals such as such as dogs, cats, turtles, birds, gerbils, fish, rabbits, etc.
2) “Unique animals” are animals which are not traditionally kept in the home, such as monkeys, goats, kangaroos, etc. In order for a unique animal to qualify as a support animal the disabled person has a “substantial burden” to show the need for that specific type of animal. (For example, a monkey that is trained to open bottles for a paralyzed person would qualify.)
No breed restrictions. City ordinances prohibiting certain species or breeds of animals do not apply to assistance animals which are allowed under the Fair Housing Act.
Pet deposits are not allowed: Housing providers may not charge pet deposits for assistance animals because they are not pets.
Reasonable information may be requested by the housing provider. If a person’s disability is not apparent (as it is, for example, when the person is blind) then reasonable information may be requested by the housing provider. This would include things such as a government record or a note from a health care provider—but not medical records, diagnosis, or a medical exam. (I once represented a 50-something year-old woman whose landlord demanded all her medical records going back to childhood, including her gynecological records. That was not a reasonable request, and we had a good outcome in that case.)
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Join the Texas Humane Legislation Network
Everyone in Texas who owns or cares for animals and cares about the laws that protect them should join the Texas Humane Legislation Network (www.thln.org) This is a non-profit, grassroots organization that fights for animals in the Texas legislature. Most of the animal protections laws in Texas were passed because of THLN’s efforts. The more members THLN has, the more clout they have in Austin to get animal protection legislation passed.