What is the difference between a service animal and an emotional support animal? The answer might surprise you! And, it can greatly affect your rights and ability to take your animal with you! Even though we are based in Colorado, generally speaking, the laws discussed here are applicable all over the United States because there are federal (think: national) laws.
Generally, under the Americans with Disabilities Act (and other related, implementing regulations and code sections), animals that are service animals or emotional support animals are called “assistance animals.”
A service animal can ONLY be a dog or a miniature horse. Emotional support animals can be any animal that provides emotional support. Although, recent rulings and whispers in the legislature may change this. Stay tuned to my blog for more information on changes to ESA definitions as they become available.
In either classification, the animal works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.
Generally, emotional support animals are protected under the FHA and Section 504 of the Rehabilitation Act. Emotional support animals are primarily a housing and airline issue because ESAs cannot go into public places with their humans.
The only permissible questions a housing authority may ask is:
1. Does the person seeking to use and live with the animal have a disability – i.e., a physical or mental impairment that substantially limits one or more major life activities?
2. Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?
If the answer to both of these questions is “yes”, that person is entitled to what is called an “accommodation” in housing and is not required to pay pet rent or pet deposits.
Emotional support animals do not have to be professionally trained or certified for purposes of being labeled and protected under the FHA as emotional support animals.
Emotional support animals cannot go into public places like restaurants, doctors’ offices, or public transit, unlike service animals who can go anywhere the person goes.
Service animals, however, can go anywhere their person goes and they are protected under the Americans with Disabilities Act (emotional support animals are not protected under the ADA), which is a federal law and therefore trumps any state or city laws restricting animals. Service animals are narrowly defined under the ADA as a dog or miniature horse that is 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. Drug addiction is not covered as a disability under the ADA.
The only permissible questions a covered entity may ask of a service animal is: (1) is this a service animal that is required because of a disability? (2) What work or tasks has the animal been trained to perform?
An entity may not ask these questions if the work is obvious: such as a dog leading around a visually impaired person.
An entity cannot ask what the person’s disability is. This violates not only the ADA, but HIPAA, as well.
If you feel you are being discriminated against in housing, public transit, or access to public places, call our experienced animal lawyers today to see how we can help you fight this discrimination and get you the justice you, and your assistance animal, deserve! 303-623-4000