Emotional support animal
[1] Service animals are trained to perform specific tasks such as helping a blind person navigate.
[3] People with mental health disabilities who possess an emotional support animal may be exempt from certain federal housing and travel rules.
[8] A 2018 review of 17 studies relating to companion animal ownership found that pets provide benefits to those with mental health conditions and that pets can be a source of calming support and companionship, as well as providing distraction and disruption from upsetting symptoms and experiences, and helping their owners maintain a positive identity and sense of self.
The authors recommended further rigorous research to test the apparent positive relationship between ownership of a companion animal and mental health.
[9] A 2019 law review article summarized some of the research into the benefits of companion and emotional support animals, for example noting that interactions with companion animals can decrease blood pressure and mitigate some of the symptoms associated with dementia and Alzheimer's disease, and that animal-assisted classroom activities had been shown to improve the social skills of children with autism spectrum disorders.
The owner's mental health impairment must be substantial enough to produce disability, rather than discomfort or a desire to have a pet.
[24] These statutes, and the corresponding case law, create the general rule that a landlord cannot discriminate against people with mental disabilities in housing, and if a reasonable accommodation will enable a person living with a disability to equally enjoy and use the rental unit, the landlord must provide the accommodation.
Section 504 of the Rehabilitation Act was enacted in 1973 and made broad and sweeping statements that discrimination against the disabled in any program receiving federal financial assistance was illegal.
To establish that a "no pets" waiver for an emotional support animal is a reasonable accommodation under Section 504, the tenant must: have a disability, be "otherwise qualified" to receive the benefit, be denied the benefit solely because of the disability, and the housing authority must receive federal financial assistance.
In Nason v. Stone Hill Realty Association (1996), a Massachusetts trial court recognized that there were more reasonable accommodations to lessen the effects of a person's disability, other than keeping an emotional support animal, and therefore denied the tenant's motion for preliminary injunction.
Additionally, the FHAA, in section 3602(h) defines handicap, with respect to a person, as: The term "major life activities" has been interpreted broadly to include those "activities that are of central importance to daily life," such as "seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, speaking, and reproducing.
"[30] The United States Department of Housing and Urban Development (HUD) is responsible for administering the FHAA; the Attorney General and private individuals may enforce it.
[31] To establish a prima facie case of housing discrimination under the FHAA: the tenant must have a qualifying disability, the landlord knew of the handicap or should reasonably be expected to know of it, accommodation of the handicap may be necessary to afford the tenant an equal opportunity to use and enjoy the dwelling, and the landlord must deny the request, such as refusing to waive the "no pets" policy.
[24] The second element, that the landlord knew of the handicap or should have known of it, places an affirmative burden on the tenant to request the reasonable accommodation, such as a waiver of a "no pets" policy for an emotional support animal.
[28] Mere emotional distress that would result from having to give up an animal because of a "no pets" policy will not qualify under federal law.
[31] A tenant may be awarded actual and punitive damages, injunctions, and attorney fees at the discretion of the court for a landlord's violation of the FHAA.
[19] As part of any determination that excludes an emotional support animal from a residential rental property, a landlord must perform an individualized assessment of the specific animal to determine if it poses a direct threat to safety or would cause substantial property damage.
[7] Landlords may be concerned that waiving a "no pet" policy for one tenant will inspire many others to claim mental illnesses and the need for emotional support animals.
"[37] In 1990, a HUD administrative judge enjoined owners of an apartment complex from charging a person with a disability a pet deposit fee.
The judge held that an auxiliary aid, like a service, guide, or signal dog, may be necessary to afford the individual an equal opportunity to use and enjoy the dwelling unit, including public and common areas.
For example, owner-occupied buildings with four or fewer rental units are exempt from the federal Fair Housing Act.
Even when the Fair Housing Act applies, circumstances may arise under which a landlord may restrict a tenant from possessing an emotional support animal.
[39] While a number of institutions traditionally held a "no pets" policy, students with ESAs assert that an animal provides them therapeutic benefit.
At present, a person can have their ESA at work as long as they can provide documentation supporting the need and it is deemed a "reasonable accommodation" under the ADA.
[44] However, HUD administrative judges have ruled in favor of emotional support animals, despite their lack of training, as being reasonable accommodations.
The grant of access for therapy animals and ESAs thus reflects a considered decision by the healthcare provider in relation to patient care, as opposed to a legal mandate.
[33] States that have passed laws criminalizing the misrepresentation of service and assistance animals include Alabama, Arizona, California, Colorado, Florida, Idaho, Iowa, Kansas, Maine, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Texas, Utah, Virginia, and Washington State.
[50] There is also a concern about people fraudulently acquiring emotional support animals though they are legally not considered disabled.
