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Last week, we highlighted some new guidance on service animals from the U.S. Department of Justice (DOJ).  In this second post in our series on service animals, we will aim to clear up confusion surrounding the different categories of animals that assist persons with disabilities. MOD consistently receives calls from individuals who benefit from the assistance or company of an animal.  Callers often refer to any animal that mitigates or relieves their disability limitations as a “service animal.” However, technically not all animals that benefit a person with a disability are “service animals.”  Service animals are specifically defined by and are subject to different laws than other animals that provide companionship and or emotional support to persons with disabilities.

Definitions and Laws

Service Animals

The Massachusetts Service Animal Law limits the definition of service animal to a dog that accompanies an individual with a sensory and or physical disability.  Federal law allows for a broader definition of service animals under the Americans with Disabilities Act (ADA). The ADA defines service animals as “dogs that are individually trained to do work or perform tasks for people with disabilities.” This definition includes psychiatric service dogs that are trained to recognize and respond to psychiatric disability symptoms. For example, a dog who is trained to help its owner with Post Traumatic Stress Disorder (PTSD) avoid environmental triggers to her disability symptoms would be considered a psychiatric service animal. Both laws obligate state and local governments and any places that are open to the public to permit service animals to accompany people with disabilities anywhere members of the public are allowed to go.

Emotional Support Animals

Emotional support animals (ESA), sometimes referred to as “comfort animals,” or “companion animals,” are animals whose presence alone has a positive effect on an individual with a disability. Unlike psychiatric service dogs, ESAs are not trained to perform a task or service. An example would be a dog that is not individually trained to provide a service, but whose companionship helps alleviate its owner’s symptoms of depression.

Therapy animals are another category of animals that typically provide rehabilitative interaction with individuals with physical, emotional, cognitive or other types of impairments in a clinical environment.

A small dog lies on a person's lap.

Emotional support animals do not have to be individually trained to perform a task or service.

ESAs are not considered service animals under the ADA or the Massachusetts law regarding service animals. This means a ESAs are not permitted to go anywhere the public is allowed to go under the definition of “service animal.”  For example, while a service animal must be permitted to enter a restaurant with its handler, an ESA would not be permitted under federal and state law permitting service animals because it would not meet the definition of “service animal.”

However, places that are open to the public and covered under these laws still have an obligation to consider modifying their policies when necessary to ensure equal access to a person with a disability. In some cases, this could mean an obligation to modify a policy to allow for an emotional support animal. MOD encourages covered entities to use such situations as opportunities to educate patrons about which animals meet the definition of service animal and to modify their policies on a case-by-case basis. Emotional support animals are not automatically entitled to access public places the way service animals are. It is important to note that individual states other than Massachusetts may have laws that do recognize emotional support animals as service animals.

This exclusion from the ADA definition of “service animal” does not limit housing providers’ obligations to make reasonable accommodations to allow these types of animals in housing. Although emotional support/companion animals do not meet the definition of “Service Animal” under the ADA, this does not affect or limit the broader definition of “assistance animal” under the Fair Housing Act in the housing context. Under the federal Fair Housing Act and the state fairing housing law, persons with disabilities may request a reasonable accommodation to keep any assistance animal, including a service animal or an emotional support animal, in his or her dwelling as an exception to a “no pets” policy.  “Assistance animal” is a broad term that encompasses both service animals and emotional support animals.

 Also, the Air Carrier Access Act (ACAA) requires airlines to allow both service animals and emotional support animals to accompany individuals with disabilities in the aircraft cabin.

Types of Animals Permitted

Under federal and state law, only dogs (and in some cases miniature horses) are recognized as service animals that are permitted to accompany people with disabilities in public places. However, there are no restrictions on the species that can be an assistance animal in housing. Therefore, while an animal other than a dog, such as a cat, is not recognized as a service animal, it may still serve as an assistance to a person with a disability in the housing context.

Neither service dogs nor assistance animals may be restricted by breed, size, or weight.  Generally, municipal ordinances that prohibit specific breeds of dogs may not be applied to service dogs or assistance animals. Similarly, while a housing provider may restrict the breed, size, or type of pet a resident may keep in his or her dwelling, exceptions must be made when the animal is needed due to a disability.

Permission and Proof

Individuals accompanied by service animals or service-animals-in-training to places that members of the public are allowed to go are not required to furnish proof that the animal is a service animal. Individuals with service animals do not need to obtain permission in advance of visiting a place that is open to the public. Only two questions may be asked to ascertain whether the animal is a service animal (if it is not obvious that the animal is a service animal); they are:

1. Is the animal a service animal required because of a disability? and

2. What task or service is the animal trained to perform?

Further, there is no specific training requirement, certification, registration, harness, or vest required of a service animal to gain access to any public place.

Unlike in public settings, in the housing context, individuals with assistance animals such as ESAs must first obtain permission to have the animal in a residence or other places that are not open to the public and do not allow animals.  S/he must request a reasonable accommodation to the ‘no pets policy.’ Also, an individual may be required to provide documentation that the animal is needed due to a disability if the disability-related need is not obvious or known to the provider.  Again, there is no specific certification or registration required; a note from a doctor or other provider that documents the nexus between the individual’s disability and the need for the animal may suffice.

MOD’s Role

MOD acts as a resource for the disability community, state and local governments, businesses, and housing providers on the issues of service animals and assistance animals.  We seek to educate and inform the public and support outcomes that lead to enhanced access for persons with disabilities. If you have been denied access because of your service animal, or have been denied a reasonable accommodation to keep an assistance animal, please contact us by form or call 800-322-2020.

This post was updated on February 23, 2018.

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