Are Emotional Support Animals Protected by ADA?

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Are Emotional Support Animals Protected by ADA?

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In February 2019, there was a so-called “epidemic” of emotional support animals in the United States. The relatively new idea did not sprout in popular culture but surge, taking quick advantage of popular cultures tenuous understanding of mental health and the desire to keep Fido at one’s side.

Emotional Support Animals (ESAs) are real and can be great help aiding those with mental disorders from PTSD to depression, giving companionship, comfort, stability, and structure to those who need it most. It’s also been shown that many people are using the term and putting it on their everyday pets to try and reap the benefits. Emotional support animals are in a gray area of the law, making it difficult and even scary to try and navigate around when you must.

You can’t deny someone in a wheelchair a ramp so they can get home, but where does that leave you when a veteran with PTSD shows you their dog? Or just someone, anyone, says their cat is vital to helping their social anxiety? There are steps rental property owners can take to understand and move forward in the residency landscape.

I. Understanding

Service Animals, as defined by the ADA under Title 2 and 3, are any animals individually trained to perform work or tasks for an individual with a disability. Disability, in this case, can include physical, sensory, psychiatric, intellectual or mental. That is the striking difference between a service animal or an emotional support animal – ESAs do not perform work tasks such as leading the blind, pulling a wheelchair, or calming someone during a flashback. ESAs give support or comfort and are therefore not considered service animals under the ADA.

II. The Fair Housing Act

HUD has provided guidance demonstrating how the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) intersect with regards to emotional support animals. The agency has established that those with a proper ESA have the right to live in pet restricted areas with their support animal but does not include the right for an ESA to go anywhere and everywhere with that pet owner. This is just one of a few striking differences between an emotional support animal and a service and working animal.

A property manager, leasing agent, rental property owner, etc., are still required to behave in a similar manner. There is a limit to what you can and cannot ask, and yes, it is safer to proceed on the side of caution. You can inquire on the type of animal, going no further than that, or how many animals, going no further than that. You can inquire on the type of service (IE service animal) and may have to accept the broader answers with little specification.

Section 504 of the Rehabilitation Act of 1973 states that all persons with disability can expect reasonable accommodations. Those accommodations include the right to live with any assistance animal, including emotional support animal. Also, they can/should be given handicapped parking spots, reserved parking close to entry for those with limited motion, curb cuts, wider doorways, braille signs, etc.

FHA does allow for landlords to request extra deposits to cover accommodation modifications. The amount of this deposit depends on several factors, including how much it would cost to change back after the tenant moves out and cannot exceed the total cost of restoring the unit. If the next tenant doesn’t want the reasonable accommodations reverted, the deposit should be returned to the tenant. There can be an extra deposit for the service animal.  Housing providers are required by ADA to allow service animal provisions, but that does not leave all housing providers hopeless.

III. Emotional Support Animal Letters

Despite all this, there is one card to play. There is no ignoring the growing number of people allegedly claiming that their common animal is an ESA, regardless of any misbehaviors. There is a number of occurrences to back this up, including an ‘ESA’ on a Southwest Flight biting a six-year-old girl, and an instance where someone attempted to bring a peacock on board as a comfort animal. Those with true disabilities, who need their service animals and ESAs to function with independence and dignity, face these fraudulent claims as a slap in the face, diminishing the true value that the real thing brings. That is why there have been a growing number of states passing laws to make it illegal to falsely claim your pet as an ESA or Service Dog.

It’s always good to check your local government or statewide regulations for penalties for making false claims.

There are several state laws across the U.S. regarding emotional support animals, service animals, and fraudulent representation thereof. Faking a service animal or emotional support animal can have different punishments as laws vary from state to state, but here is a brief overview:

$250 fine for those misrepresenting pets as service animals.

Fines up to and included $1,000 and even half a year in jail.

Misrepresentation of a pet as a service animal is a class 2 petty offense. Those guilty have a scale of fines depending on if they’re repeat offenders, starting at $25.

CS/SB 414 classes it as a second-degree misdemeanor. Those found guilty face jail time up to 60 days and a $500 fine.

Should any able-bodied person utilize a device or dog to mimic being disabled in order to gain better treatments or benefits that a disabled person has can be found guilty of a misdemeanor. There are no specified consequences as of now.

House Bill 1645 would make claiming your pet as a service animal to gain access to otherwise pet free areas a petty offense.

Recent legislature states ‘no pet rules’ do not apply to service animals, including emotional support animals that provide relief from a disability.

Passed in 2018, offenders can spend 30 days in jail, pay a fine, or both.

Misrepresentation in this manner is a class A misdemeanor.

As of 2015, the civic violation has a sliding scale for each occurrence, and the max fine is $1,000.

As of 2016, the violation is classed as a misdemeanor with a max prison sentence of 90 days, a $500 limited fine, and or community service for 30 days.

2017 law states any person guilty of fraudulent behavior and they have committed a class C misdemeanor. They are liable for all damages, and continued misrepresentation will escalate to a class B misdemeanor.

Offender will be judged with sliding consequences. A first time offence will result in a $100 fine, and after that the fine can increase to $1,000 and jail time of 90 days.

Started in 2005, those guilty may be punished up to $500.

Fines not specified for the misdemeanor.

2014 law gives fines between $100 – 500.

Has recorded violations as far back as 1978, stated as a misdemeanor under New Mexico Common Law.

Stipulated offenses with increased punishment for repeat offenders. First time offenders can have a $25 fine, and by the third time, can receive two-week imprisonment with $100 fines.

Class 3 misdemeanor.

Recent Senate Bill 119 will go into effect in July, which allows property managers/landlords to request a doctor’s note in regards to questionable service animals and emotional support animals, on the condition that the disability is not readily apparent.

$300 fine and 30 hours of community service that serves the disabled community. Repeat offenders may have their animals taken from them.

Class C misdemeanor.

Class 4 misdemeanor.

$500 fine for civil infraction.

Misdemeanor offense with a fine up to $750.

Always check local legislature for more specific detail. Some states are leaning the opposite way. For example, Oregon has a bill that could ban any additional charges from landlord to tenant based on pets. Seattle – the city – has a similar mindset. Check your local city laws, and the state as well.  

As a real estate agent or rental property owner, this means there is a careful dialogue to ensure someone requesting their ESA join them in renting. You can’t say outright, are you disabled? Or similar questions. You can’t claim someone is faking it, either.

A potential tenant will have proof, and it is a landlord’s right to request this proof. They need to provide an ESA Letter from a licensed health care professional.  These letters are reliable through certified therapists.

IV. Scammed Certificates

Because so many people have been abusing the right to ESAs, there are many online ‘certifications’ people have been using to claim their cat, dog, and peacock are proper emotional support animals. There are sites set up just to create fraudulent ‘certificates’ or ESA Letters to declare every pet ever an ESA. To verify an ESA, consider the following:

  • A genuine ESA must be written by a licensed mental health professional.
  • The licensed mental health professional must be licensed in the state you are living in.
  • The ESA is awarded after a mental health screening.
  • The letter is not referencing a 'registry' that one signed up for, or requests the person sign up for their services.
  • The ESA is 'certified'.
  • The service doesn't return requests for validation, verification, or other follow up services.

There is no national, state, or city level registry for Emotional Support Animals. An ID card, dog tags, framed certificate, or anything else does not make a pet immediately an ESA. These are often add-ons used to try and make a false service seem legitimate when it is, in fact, quite the opposite. Bottom line: a registry is not real and does not mean a property owner has to allow that pet in. Landlords can verify ESA letters in a way that does not violate HIPPA or the Fair Housing Act. A proper ESA letter will be on a letterhead, with contact information such as phone number and email, along with the therapist’s license number. A landlord cannot ask the doctor anything directly, but you can verify the license number through any state portal.

Despite the growing popularity of so-called emotional support animals, a landlord is not powerless. There may be a limit to what you can and cannot ask, but all your questions can be answered on one sheet of paper. As a property owner, you don’t need to know what someone’s disability is, but only that the pet and the ESA letter is real. If something fishy is in the letter, that could tell you all you need to know. Call the licensed mental health professional, see if they are in state, if they are verified through state portals, and if there is still doubt, check with a lawyer on local laws.

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ApplyConnect marks used herein are trademarks or registered trademarks of applyconnect.com. Other product and company names mentioned herein are the property of their respective owners.