What do skunks, alligators, peacocks, and capuchin monkeys all have in common, besides the obvious fact that they are all animals? All are examples of true-life emotional support animals or ESAs. Network news and social media abound with examples of the extreme. Back in 2015, a Wisconsin McDonald’s restaurant received some unwanted publicity after ejecting a woman and her emotional support kangaroo from the restaurant.   In 2018, Frontier Airlines removed a passenger from her flight after she insisted on keeping her 11-week-old emotional support squirrel with her, delaying the flight by 2 hours.  And more recently, in September 2023, a man unsuccessfully attempted to bring his emotional support alligator into Citizens Bank Park in Philadelphia for a pregame meet-and-greet with Phillies players. Many other newsworthy instances of issues around ESAs revolve specifically around housing, which opens up a whole new can of worms. Access to fast food, airplane flights, and fun leisure activities like professional baseball games don’t trigger the Fair Housing Act, which would apply to cases involving ESAs and housing.

Housing is a fundamental aspect of life; and, ensuring equal access to housing opportunities is a cornerstone of civil rights in the United States. Under the Fair Housing Act (FHA) in the U.S., it is illegal to discriminate against individuals with disabilities when renting or selling housing. This includes providing accommodations for individuals who require assistance animals, but there is often confusion about the distinction between service animals and emotional support animals (ESAs). Please Note: Nothing herein can take the place of specific legal advice for any specific situation. These issues are often fact sensitive. 

Service animals, most commonly dogs, are specially trained to perform tasks or work that assist individuals with disabilities. These tasks could include guiding visually impaired individuals, alerting hearing-impaired individuals to sounds, pulling wheelchairs, or even alerting someone with a seizure disorder before a seizure occurs. Service animals undergo rigorous training to ensure they can perform their tasks effectively and remain well-behaved in public spaces.

Emotional support animals, on the other hand, provide comfort and emotional support to individuals with mental health conditions or emotional disabilities. ESAs are not trained to perform specific tasks like service animals do but serve an important role in providing companionship and reducing the symptoms of mental health disorders such as anxiety, depression, and post-traumatic stress disorder. As demonstrated in the previous examples, ESAs can include a wide range of animals, not limited to dogs and cats, and can be prescribed by mental health professionals as part of a treatment plan.

Legal Distinctions

Both service animals and ESAs provide valuable support. There are important legal distinctions between the two.

Service Animals: Access by service animals is granted broad protections under the Americans with Disabilities Act (ADA) but it does not recognize ESAs as “service animals.” Service animals are allowed in nearly all public places, including housing run by government entities, regardless of a "no pets" policy. Landlords cannot charge pet fees or deposits for service animals. 

FHA Protections: Under the Fair Housing Act, individuals with disabilities have the right to request reasonable accommodations for their disabilities, including the presence of a service animal or ESA, in housing situations. Landlords are required to make reasonable accommodations to their policies to allow tenants with disabilities to have these animals.

Emotional Support Animal (ESA): While ESAs may not be covered by the Americans with Disabilities Act to the same extent as service animals, ESAs are protected under the Fair Housing Act, in the context of housing. To qualify for an ESA, a person must have a diagnosed mental health condition or emotional disability, and the ESA must be prescribed by a licensed mental health professional. ESAs are not required to have specialized training, but they must be well-behaved and not pose a threat to others in the housing community. Landlords can request documentation, such as a letter from a mental health professional, verifying the need for an ESA. 

Assistance Animal: Under the Virginia Fair Housing Law, the definition of an "assistance animal" would include both service animals and ESAs.  Virginia law also prohibits landlords from requiring a pet deposit or any additional rent to maintain an assistance animal. However, it establishes the tenant’s responsibility for otherwise complying with the rental agreement or any rules and regulations of the property owner. It also establishes a tenant’s responsibility for any physical damages to the property.

Landlord Responsibilities

Landlords have legal obligations and responsibilities when it comes to service animals and ESAs in rental housing, including the following:

Reasonable Accommodation: Landlords must make reasonable accommodations for tenants with disabilities who require service animals or ESAs. This includes waiving pet fees, deposits, and allowing the animal, even in properties with "no pets" policies.

Verification: Landlords can request documentation for ESAs, such as a letter from a licensed mental health professional, verifying the tenant's disability and need for an ESA. However, they cannot ask for detailed information about the tenant's disability or demand to see medical records.

Safety Concerns: Landlords have the right to deny accommodation if the presence of the animal poses a direct threat to the safety of others or would cause substantial damage to the property. However, this determination must be based on specific, objective evidence.

Conclusion

Understanding the distinction between service animals and emotional support animals is important. While both provide vital assistance to individuals with disabilities, the legal obligations and procedures surrounding these two categories can differ. The good news is that under the FHA, they are treated essentially the same. Landlords must be aware of their responsibilities under the Fair Housing Act and the Virginia Fair Housing Law, ensuring that individuals with disabilities are granted equal access to housing, whether they rely on a service animal or an emotional support animal. Tenants, on the other hand, should be informed about their rights and responsibilities and provide the necessary documentation when requesting accommodation for their ESAs, thus ensuring a harmonious living environment for all.