What is a service animal?
Under the ADA, a service animal is defined as a dog [or miniature horse] that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability. Examples of tasks that service animals perform are alerting diabetics if their blood sugar is too high or too low; counterbalance, bracing, stabilizing, etc.; assisting with wheelchair transfers; retrieving medical equipment; alerting to allergens in food; alerting to seizures; guiding the blind; and many, many more. The list is very extensive; in essence, the dog must be trained to take a specific action when needed to assist the person with a disability.
What is an emotional support animal?
Emotional support animals have become extremely common, and sometimes misused or misrepresented, in recent years. According to the U.S. Department of Housing and Urban Development (HUD), Emotional Support Animals (ESAs) are a type of assistance animal that provides emotional support alleviating one or more symptoms of a person’s disability. Additionally, to be legally considered an ESA, the pet needs to be prescribed by a licensed mental health professional to a person with a disabling mental illness. A therapist, psychologist, or psychiatrist must determine that the presence of the animal is needed for the mental health of the patient.
The key difference between a service dog and an ESA is whether the animal has been trained to perform a specific task or job directly related to the person’s disability. The ADA provides a great example regarding anxiety attacks: If the dog has been trained to sense that an anxiety attack is about to happen and take a specific action to help avoid the attack or lessen its impact, that would qualify as a service animal. However, if the dog’s mere presence provides comfort, that would not be considered a service animal under the ADA. The latter, if prescribed by a licensed mental health professional, may be considered an ESA.
Because of these differences, service animals and ESAs are also afforded different protections under both federal and state laws. Under the ADA, State and local governments, businesses, and nonprofit organizations that serve the public generally must allow service animals to accompany people with disabilities in all areas of the facility where the public is allowed to go. This includes businesses, housing, grocery stores, public parks, beaches, restaurants, court houses, airports, and almost every other place in which the public is allowed to go. ESAs are not generally afforded this same right. There are housing laws granted for ESAs—under both the Fair Housing Act (FHA) and Section 760.27, Florida Statutes, both provide protections for ESAs. Section 760.27, Florida Statutes, states in part, that, “it is unlawful to discriminate in the provision of housing to a person with a disability or disability-related need for, and who has or at any time obtains, an emotional support animal.” This includes housing situations in which, but for the disability, would not typically allow animals.
While there are many intricacies of the law that deal with both service animals and emotional support animals, the team at Widerman Malek is here to help individuals and businesses maneuver through the law. If you have questions about ADA compliance regarding service animals or emotional support animals for you or your business, or if you feel that your rights have been violated by a business or your place of residence due to your service animal or emotional support animal, contact attorney Lisa Bolinger to discuss your options.
Stay tuned for Part 2 which will discuss the questions that may be asked of the individual with the service dog or ESA, requirements for training, certification, registration, ramifications of discrimination against these individuals, and exclusions.
