In the past few years, there has been a dramatic rise in the use of emotional support animals. These animals provide therapeutic benefits to their owners who may suffer from such things as insomnia, anxiety or other emotional challenges. For communities, such animals present several challenges and questions. The most critical of these is what are the rights of the resident and what are the obligations of the association in accommodating such animals in common areas?
The first thing to understand is the difference between a service animal, like a Seeing Eye Dog, and an emotional support animal. The Americans with Disabilities Act (ADA) defines service dogs as any guide dog, signal dog, or other animal which is trained to provide assistance to an individual with a disability. For example, some dogs are trained to pull wheelchairs, others are taught to alert to the sounds of the telephone, oven timers, alarm clocks, smoke alarms, and even a baby’s cry. Service animals are not considered pets. Under the ADA service dogs must be allowed into public places and in fact it is unlawful to refuse to allow a person with a service animal to enter into a public place.
It is lawful to make limited inquires about a service animal. According to the ADA, when it is not obvious what the function of the service animal is, you can ask two questions of the animal’s owner. First, you may ask if the dog is required because of a disability. Note you cannot ask what the disability is, just if the dog is required for the purposes of assistance. Second, you can ask about what task the animal is trained to perform. It is not acceptable to ask for any supporting documentation or certificates for the animal. Finally, if the animal becomes uncontrollable or is not house trained, the ADA allows them to be removed from the public space.
Emotional support animal is an animal whose presence with the owner provides relief to a condition or disorder they may suffer. Unlike service animals, emotional support animals do not require training to perform specific tasks; rather it is their presence that provides assistant to their owner. Unlike service animals, emotional support animals are not covered by the ADA. There are however, some federal requirements that apply to emotional support animals. First, an emotional support animal is allowed to fly in a cabin with their owner. Second, such animals are allowed to reside in “No Pet” housing. So if your association has a not pet rule, and a resident has a request to have an emotional support animal reside with them, they must be allowed to have the pet regardless of the no pet rule.
While an association cannot exclude an emotional support animal they can require some documentation in support of the owner’s request. First, it is acceptable to require the owner to request accommodation for the emotional support animal in writing. Such letter should address the request for accommodating the emotional support animal, who accommodating the animal will benefit the resident, and be supported by a note from a doctor or other health professional in support of their request. Any such request should be respectful of the resident’s privacy, so there is no need to know the specific emotional disability of the resident.
As with any issue, courtesy goes a long way. Most persons who require a service dog or an emotional support animal are responsible folks who have a need to such assistance. Knowing the basics helps and if a question arises, it is always good to seek the advice of qualified counsel or other expert in the area.
The US Department of Justice has a toll free ADA hotline. That number is 800-514-0301 (voice) or 800-514-0383 (TDD).
Andrew S. Fortin
Senior Vice President, External Affairs