Are Emotional Support Animals Protected by ADA?

Written by Landlord Property Management Magazine on . Posted in Blog

By Nicole Seidner In February 2019, there was a so-called “epidemic” of emotional support animals in the United States. The relatively new idea did not sprout in popular culture but surge, taking quick advantage of popular cultures tenuous understanding of mental health and the desire to keep Fido at one’s side. Emotional Support Animals (ESAs) are real and can be great help aiding those with mental disorders from PTSD to depression, giving companionship, comfort, stability, and structure to those who need it most. It’s also been shown that many people are using the term and putting it on their everyday pets to try and reap the benefits. Emotional support animals are in a gray area of the law, making it difficult and even scary to try and navigate around when you must. You can’t deny someone in a wheelchair a ramp so they can get home, but where does that leave you when a veteran with PTSD shows you their dog? Or just someone, anyone, says their cat is vital to helping their social anxiety? There are steps a property manager can take to understand and move forward in the residency landscape.

I. Understanding

Service Animals, as defined by the ADA under Title 2 and 3, are any animals individually trained to perform work or tasks for an individual with a disability. Disability, in this case, can include physical, sensory, psychiatric, intellectual or mental. That is the striking difference between a service animal or an emotional support animal – ESAs do not perform work tasks such as leading the blind, pulling a wheelchair, or calming someone during a flashback. ESAs give support or comfort and are therefore not considered service animals under the ADA.

II. The Fair Housing Act

HUD has provided guidance demonstrating how the Fair Housing Act (FHA) and the Americans with Disabilities Act (ADA) intersect with regards to emotional support animals. The agency has established that those with a proper ESA have the right to live in pet restricted areas with their support animal but does not include the right for an ESA to go anywhere and everywhere with that pet owner. This is just one of a few striking differences between an emotional support animal and a service and working animal. A property manager, leasing agent, rental property owner, etc., are still required to behave in a similar manner. There is a limit to what you can and cannot ask, and yes, it is safer to proceed on the side of caution. You can inquire on the type of animal, going no further than that, or how many animals, going no further than that. You can inquire on the type of service (IE service animal) and may have to accept the broader answers with little specification. Section 504 of the Rehabilitation Act of 1973 states that all persons with disability can expect reasonable accommodations. Those accommodations include the right to live with any assistance animal, including emotional support animal. Also, they can/should be given handicapped parking spots, reserved parking close to entry for those with limited motion, curb cuts, wider doorways, braille signs, etc. FHA does allow for landlords to request extra deposits to cover accommodation modifications. The amount of this deposit depends on several factors, including how much it would cost to change back after the tenant moves out and cannot exceed the total cost of restoring the unit. If the next tenant doesn’t want the reasonable accommodations reverted, the deposit should be returned to the tenant. There can be an extra deposit for the service animal.  Housing providers are required by ADA to allow service animal provisions, but that does not leave all housing providers hopeless.

III. Emotional Support Animal Letters

Despite all this, there is one card to play. There is no ignoring the growing number of people allegedly claiming that their common animal is an ESA, regardless of any misbehaviors. There is a number of occurrences to back this up, including an ‘ESA’ on a Southwest Flight biting a six-year-old girl, and an instance where someone attempted to bring a peacock on board as a comfort animal. Those with true disabilities, who need their service animals and ESAs to function with independence and dignity, face these fraudulent claims as a slap in the face, diminishing the true value that the real thing brings. That is why there have been a growing number of states passing laws to make it illegal to falsely claim your pet as an ESA or Service Dog. It’s always good to check your local government or statewide regulations for penalties for making false claims. There are several state laws across the U.S. regarding emotional support animals, service animals, and fraudulent representation thereof. Faking a service animal or emotional support animal can have different punishments as laws vary from state to state, but in California the law enforces fines up to and included $1,000 and even half a year in jail. Always check local legislature for more specific detail. Some states are leaning the opposite way. For example, Oregon has a bill that could ban any additional charges from landlord to tenant based on pets. Seattle – the city – has a similar mindset. Check your local city laws, and the state as well.   As a property manager or rental property owner, this means there is a careful dialogue to ensure someone requesting their ESA join them in renting. You can’t say outright, are you disabled? Or similar questions. You can’t claim someone is faking it, either. A potential tenant will have proof, and it is a landlord’s right to request this proof. They need to provide an ESA Letter from a licensed health care professional.  These letters are reliable through certified therapists.

IV. Scammed Certificates

Because so many people have been abusing the right to ESAs, there are many online ‘certifications’ people have been using to claim their cat, dog, and peacock are proper emotional support animals. There are sites set up just to create fraudulent ‘certificates’ or ESA Letters to declare every pet ever an ESA. To verify an ESA, consider the following:
  • A genuine ESA must be written by a licensed mental health professional.
  • The licensed mental health professional must be licensed in the state you are living in.
  • The ESA is awarded after a mental health screening.
  • The letter is not referencing a ‘registry’ that one signed up for, or requests the person sign up for their services.
  • The ESA is ‘certified.’
  • The service doesn’t return requests for validation, verification, or other follow up services.
There is no national-, state-, or city-level registry for Emotional Support Animals. An ID card, dog tags, framed certificate, or anything else does not make a pet immediately an ESA. These are often add-ons used to try and make a false service seem legitimate when it is, in fact, quite the opposite. Bottom line: a registry is not real and does not mean a property manager has to allow that pet in. Landlords can verify ESA letters in a way that does not violate HIPPA or the Fair Housing Act. A proper ESA letter will be on a letterhead, with contact information such as phone number and email, along with the therapist’s license number. A landlord cannot ask the doctor anything directly, but you can verify the license number through any state portal. Despite the growing popularity of so-called emotional support animals, a landlord is not powerless. There may be a limit to what you can and cannot ask, but all your questions can be answered on one sheet of paper. As a property manager, you don’t need to know what someone’s disability is, but only that the pet and the ESA letter is real. If something fishy is in the letter, that could tell you all you need to know. Call the licensed mental health professional, see if they are in state, if they are verified through state portals, and if there is still doubt, check with a lawyer on local laws.
Cole Seidner is a copywriter at the CIC Blog. She holds a degree in Writing from Savannah College of Art and Design with a focus in creative nonfiction. Her free time is spent taking pictures of her dogs or reading deep dive analysis on movies that she hasn’t seen.
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