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Tag: emotional support animals

PUPPIES AND PONIES AND PEACOCKS, OH MY!

The Distinctions between Service Animals, Emotional Support Animals and Pets

Written by Andrew Montoya

Most people like animals of all sorts. I mean, what’s not to like about their furry faces, precocious personalities, and constant companionship? People love their animals so much, in fact, that Colorado has become increasingly “pet-friendly,” with restaurants placing water bowls in patio areas and carrying menu items intended for pets, and other establishments like stores and office buildings permitting animals where they once were forbidden.Picture of two labrador retrievers, one yellow and one black, sitting near a white brick wall, with both dogs looking at the camera. Behind the dogs, hung on the wall, is a nicely framed sign reading "DOGS WELCOME" in large white, friendly text, with the notation below "Water & Biscuits Available" below in a smaller font. Usually, those animals are dogs, but there has been a marked increase in recent years of other types of animals accompanying folks in public, including snakes and lizards, birds both large and small, and other mammals more often seen at the Stock Show or Denver Zoo. Although there are some safety and sanitary guidelines that prohibit pet-friendly policies, generally restaurants, stores, and other such spots are permitted to allow animals if they so desire. Nevertheless, for some folks, that’s just not good enough. Some of those people have discovered that claiming a disability and purchasing a cute little vest or tag with words like “service animal” or “assistance dog” can not only get their four-legged friends in the door but also can save on things like fees and deposits. Meanwhile, websites boast that, for a low, one-time fee, people can purchase vests, tags, and even letters from medical professionals substantiating the claimed disability. That is, of course, not to say there aren’t legitimate service animal and emotional support animal users who also might have such vests, tags and documentation (even though vests, tags and documentation aren’t required under the law), but the proliferation of online shops has caused many to begin to question service animal users, especially those with invisible disabilities, and has led to conflict between inadequately trained pets and highly trained service animals. That conflict, coupled with the rise of news reports of atypical emotional support animals (or ESAs), such as peacocks and squirrels, being taken on airplanes, has even led to proposals for new laws and new rules at both the state and federal levels.

The legal landscape related to service animals and ESAs is reasonably straightforward, though there are a few twists and turns to keep in mind. As the nation’s preeminent disability rights law, let’s start with the Americans with Disabilities Act (“ADA”). The ADA applies in three specific areas: Title I applies to employment; Title II applies to most governmental entities; and Title III applies to private, non-governmentally owned or operated businesses open to the public. The Fair Housing Amendments Act (“FHAA”) applies to housing. Finally, the Air Carriers Access Act (“ACAA”) applies to air travel, but not to airports themselves. Although there are other disability rights laws that may impact service animals, emotional support animals and other pets, including the Colorado Anti-Discrimination Act, those are the big three with respect to our zoological brethren. The key things to remember are that each of these laws only protects the rights of individuals with disabilities who need the animal for a particular reason. Also, each of these laws requires reasonable accommodations or modifications to policies, practices and procedures that would otherwise prohibit animals.

Under the ADA, a service animal is a dog—and only a dog—that is specially trained to perform tasks for a person with a disability. The ADA regulations also permit miniature horses as a reasonable modification, but dogs are the only specifically identified service animals. Picture of a white miniature horse wearing a white vest that features patches, one of which clearly reads "THERAPY HORSE."Under the ADA, service dogs are permitted to accompany individuals with disabilities in most situations with very limited exceptions, such as sterile operating rooms in hospitals, and are exempt from many fees often associated with pets, such as hotel fees and deposits. In addition, under the ADA, a public entity under Title II and an operator of the place of public accommodation under Title III are only permitted to ask two questions about an animal: (a) whether the animal is a service animal and (b) what tasks the animal performs for the person with a disability. If the answers to both of those questions are yes, then the service animal must be permitted. Moreover, those public entities and places of public accommodation are prohibited from asking for proof of the person’s disability or proof of the animal’s status or training. Although an individual with a disability may have to prove disability if the individual brings a claim or lawsuit later alleging discrimination because of the denial of a service animal, at the time the individual with a disability visits a place of public accommodation or public building operated by a public entity, the ADA only requires answers to these two questions.

Both the FHAA and ACAA, on the other hand, recognize the right of an individual with a disability to have ESAs, and both laws permit a much greater variety of animals than just dogs (or miniature horses). ESAs provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, and neither of these two laws requires the animal to have specialized training. Picture of a live turkey on an airplane seat, looking at the camera with its beak partially open, and with a person's arm partially around its back. There is also a man sitting in a seat in the row behind the turkey with a slightly confused look on his face.Both laws also often exempt individuals with disabilities with ESAs from many fees associated with pets. To take a slightly deeper dive, much like how the ADA recognizes miniature horses as reasonable modifications, the FHAA also views service animals and emotional support animals as reasonable accommodations. That is, housing providers are required to modify their “no animals” policies to permit both service and emotional support animals for people with disabilities. Although such housing providers may request evidence of the claimed disability if it is not obvious, there are not many regulations or requirements related to animals under the FHAA.

The ACAA, by contrast, has some hoops for travelers to jump through, including requirements that the passenger provide very specific documentation related to the disability and the animal. The ACAA also specifically permits air carriers from prohibiting snakes, ferrets, rodents and spiders, and other animals that are too large to fit safely in the cabin.

Now get ready for the twists and turns, as we walk through a hypothetical scenario. A college student, let’s call him Michael, has an emotional support dog, Rex, that lives with him in his apartment. Michael travels to another city for a vacation. Michael is permitted to keep Rex in his apartment pursuant to the FHAA, but Michael has to put Rex in a crate in order to travel in a cab to Union Station in Denver because Rex isn’t a service animal and that cab is covered by Title III of the ADA. Michael can take Rex out of the crate once at Union Station, however, because Union Station is “pet-friendly.” Picture of a small white dog using the Pet Relief Area at Denver International Airport, which is a small room with high quality astroturf, a large fake rock and a small trash can on the ground, and a large photographic mural on the back wall of a person and dog atop the snowy mountain peaks.Once the A Line train arrives to take Michael and Rex to DIA, Michael again has to put Rex back in the crate for the trip. DIA, however, is also “pet-friendly,” so once at the airport, Michael frees Rex again and stops at one of the airport’s new $100,000+ pet relief areas to give Rex a much-needed pit stop. After washing up, Michael decides to stop off at one of DIA’s many restaurants for a quick bite to eat. Unfortunately, though, that restaurant doesn’t permit non-service animals, so it’s back in the crate for poor Rex. After packing up a doggy bag, it’s off to the terminal for Michael and out of the crate once again for Rex.

Rex can stay out of the crate while on the plane because Rex is a documented ESA and is neither an unusual type of animal nor too large. However, once in the air, Rex begins to get a bit jumpy and starts barking at another passenger’s emotional support rabbit, so the flight crew asks Michael to crate Rex until he calms down, which, fortunately, doesn’t take long. A short while later, Michael and Rex land in their destination city and head off to rent a car to drive to their hotel. The rental car company, however, has a sign on the door that reads “service animals only,” so Michael puts Rex back in the crate while he goes inside. The desk agent, however, says that she is allergic to dogs and requires Michael to leave Rex outside entirely, commenting that there will be a significant cleaning fee when Michael returns the car if there is any dog hair left inside as well. Suffice it to say, Michael and Rex leave pretty quickly, without renting a car. Michael then pulls up a rideshare app and orders a vehicle.  The driver shows up but, upon seeing Rex, says “no dogs” and drives away. A kind passerby who saw what happened informs Michael that there is a city bus that goes within a couple of blocks of his hotel, so Michael sticks Rex back in the crate and hops on board. Michael is able to uncrate Rex for the walk to the hotel but puts him back in the crate to check in. Unfortunately, Michael didn’t realize that the hotel charged an extra $50 per night as a pet deposit, which renders him broke for the remainder of his trip.Picture of a small white dog lying down with dollar bills fanned out in front of it.

As that hypothetical illustrates, the patchwork of legal obligations from place to place varies a lot, making it pretty difficult to determine what animals are permitted where (and why). It’s easy to see, though, why some people try to pass off their pets as ESAs. Even though ESAs aren’t permitted everywhere, they are permitted in more places than pets (despite the current “pet-friendly” trend) and sometimes without a fee. Contrasting poor Michael’s and Rex’s experiences with those of a service dog user, who is permitted to keep the dog in all of these places Michael and Rex visited (and without being subject to any additional fees), it’s also easy to see why some people claim untrained animals and ESAs as actual service dogs. Although it is easy to understand why folks do this, it’s equally important to understand why doing so is harmful to real service animals and ESAs.

Service animals are critical supports for people with disabilities, allowing for greater independence with an awesome companion in tow. True service animals are generally very well-trained and very well-behaved, so much so that you might not even notice that the dog is there unless it is needed. A guide dog for an individual who is blind and a dog trained to assist an individual who uses a wheelchair to pick things up and assist with opening doors are examples of commonly used service animals. Picture of a man sitting in a manual wheelchair overlooking water with a yellow laborador wearing a blue vest with patches, sitting next to him, also looking out over the water.ESAs and pets, on the other hand, often do not receive the level of training that service animals do, and can exhibit less than appropriate behaviors. Things like excessive barking or jumping up (unless these are signals the dog uses to alert their handlers) and attempting to eat from a table can be enough to give the general public pause and put questions in their minds about other ESAs and service animals they may encounter in the future. Inadequately trained animals also can cause significant harm to service animals by interfering with, distracting, or even attacking trained animals. Although there is liability under Colorado state law for attacks on service animals, those sorts of attacks have caused some people with disabilities to have to retire their service animals early, costing them thousands of dollars and potentially months of independence until a different animal is located. And even then, the service animal user is left hoping that the same fate doesn’t befall the new dog. Because of all of the potential harms that can occur to true service animals, even by inadequately trained ESAs, the “pet-friendly” trend can be somewhat alarming. Screen clipping of patches reading "THERAPY DOG" that available at chewy.com for $10.99 for a set of two.What’s more alarming, though, is the proliferation of websites offering certifications, credentials, letters from medical professionals (who have never personally interacted with the “patient”), and vests for a modest one-time fee. Despite efforts at both the state and federal levels to curb such abuses, these efforts have yet to produce results. It appears inevitable that more restrictions are coming for air carriers, as the Department of Transportation issued a Notice of Proposed Rulemaking on February 5, 2020, related to animals on airplanes. The Colorado Legislature was also considering additional protections for people with disabilities and their service animals and ESAs, but it is unclear whether those efforts will gain traction. Nevertheless, it is incumbent upon all of us pet owners, ESA companions and service animal users to keep all of our fuzzy friends safe and happy. As much as your own Rex might give you those infamous puppy dog eyes, unless Rex is an adequately trained pup, it might be best to just leave him home because failing to do so could result in thousands of dollars in liability, but more importantly, in a person with a disability losing their best friend and their independence.


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