What Is the Difference Between a “Service Animal” and an “Emotional Support Animal”?
By The Elmore and Smith Law Firm, PC on February 27, 2020 | In Dog Bite Injury
On June 4, 2017, Mr. Marlin Jackson of Daphne, Alabama took his window seat on a Delta commercial flight leaving Atlanta bound for San Diego. Mr. Kevin Mundy, Jr., of Henderson County, NC took the middle seat next to Mr. Jackson and attempted to hold his 50-lb. mixed breed “emotional support” animal on his lap for the 3+ hour flight. Before takeoff, the dog began growling at Mr. Jackson. After Mr. Jackson asked Mr. Mundy directly if the dog would bite, the dog lunged at Jackson’s face biting him in the face. The dog then attacked a second time, again biting Mr. Jackson’s face. Mr. Jackson suffered severe facial injuries requiring 28 stitches according to his attorneys. Mr. Jackson will have permanent facial scarring.
Service animals perform essential tasks for their disabled owners. Under the Americans with Disability Act, a service animal is defined as an animal “that has been individually trained to do work or perform tasks for an individual with a disability.” The tasks performed by the dog must be directly related to the person’s disability. For example, a seeing-eye dog that assists a visually impaired person qualifies as a service dog pursuant to the ADA.
Service dogs are allowed to accompany their owner into public places which do not normally allow animals. For example, in North Carolina, animals are prohibited in restaurants due to sanitary concerns. However, a service dog can accompany its owner into restaurants, hotels, stores, hospitals, and all other public areas as long as the dog is under the control of the handler. There is no requirement that the dog be “fed at the table”, nor can the handler leave the dog (in a hotel room, for example). The dog can be refused entry if it poses a safety risk to other persons.
There are no specific training requirements for service animals and the ADA does not require specific certification.
Emotional Support Animals
An emotional support animal is a companion animal that provides therapeutic benefit to the individual with a mental or psychiatric disability. The animal cannot be solely for companionship but must help alleviate the owner’s symptoms mental symptoms. The animal need not perform any particular task nor be trained in any particular way, including training to be in public.
Do Businesses Have to Accommodate Emotional Support Animals?
Emotional support animals are NOT entitled to the protections afforded to services animals under the Americans with Disabilities Act. The provisions of accommodations under the ADA, therefore, do not apply to emotional support animals. However, other federal and state laws may apply.
However, the Fair Housing Act requires that landlords accommodate emotional support animals. Therefore, if a landlord has a “no pets” policy, but the tenant needs an animal (ex: a turtle, a dog, a snake, a potbellied pig) for emotional support, the landlord must accommodate the animal. Landlords with four or more units are generally covered by the Fair Housing Act.
The Air Carrier Access Act also requires that public airlines to accommodate both service animals and emotional support animals, provided the animals do not pose a danger to other passengers.
How Easy Is It to Claim a Pet Is a “Service Animal”?
In recent years, more and more animals are appearing in public as “service” animals. Some of these service animals are legitimately trained animals who assist disabled persons. However, without certification requirements, and with some persons unwilling to leave their animals at home, a thriving business has emerged selling certificates and vests to pet owners who wish to claim their dog as a service animal. Amazon, for example, sells both service dog harnesses and service dog “ID cards” for about $35.00 each. Both the ADA and the Justice Department state that these documents “do not convey any rights under the ADA” and are not “proof that the dog is a service animal”.
For emotional support animals, several companies online offer a “mental health evaluation” via phone and certificates that an animal is an emotional support animal. These evaluations and certificates cost about $100-$200.
As airlines charge over $200 each way to fly an animal via cargo, pet owners can save hundreds of dollars by fraudulently passing off their pet as a service animal or emotional support animal. Likewise, pet owners can force landlords to accept their pets if they can pass their pet off as an emotional support animal.
North Carolina has a registration system through the N.C. Dept. of Health and Human Services to register service dogs which can help identify true service dogs. However, this registration is not recognized under federal A.D.A guidelines. Lack of registration does not necessarily mean that the animal is not a service animal for purposes of A.D.A. enforcement.
Are There Penalties for Fraudulently Claiming an Animal Is a Service Animal?
The laws regarding misrepresenting a pet as a service dog varies from state to state. North Carolina makes it unlawful to disguise an animal as a service animal and the crime is listed as a Class 3 misdemeanor.
In addition to the criminal consequences, however, pet owners should be aware that fraudulently claiming their pet is a service animal can endanger the public. Service animals are trained to be in public places and can usually handle the stress of airports, busy shopping centers, and other public places. Untrained pets can be unpredictable and are more prone to aggression and attacking if they are stressed or frightened.
Additionally, by claiming a pet is a service animal, especially if the pet is disruptive, true service animals and their disabled handlers can face difficulty in overcoming the reputation of fake service animals. Just as it is wrong to park in a handicapped parking space if a person is not disabled, it is wrong to claim to be disabled and have a pet obtain accommodations to save money or convenience with regard to a pet.
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