What’s the difference and why does it matter?
Have you seen the video of Wally the alligator basking in his fifteen minutes of viral fame and visiting seniors at a Pennsylvania assisted living center? According to his owner, the five-foot long reptile from Central Florida has the run of the house which includes a living room pond he share with Scrappy, another rescue gator named Scrappy. The kicker? Wally is a registered emotional support animal. While not the first unorthodox creature to be identified as an assistance animal (remember Dexter the emotional support peacock?) his adventures highlight the confusion – and in many cases the controversy – over the increasing visibility of all types of animals routinely appearing in public which are characterized as assistance animals. The terms service animal, emotional support animal, comfort animal and therapy dog are often used interchangeably, leaving business owners, employees, and those who depend on service animals to accomplish the activities of daily life in embarrassing situations, and other customers or neighbors feeling suspicious or uncomfortable. Each designation represents a distinctions with a difference that effects the rights and duties of businesses, animal owners/handlers, landlords, and the general public.
Perhaps the best known category is service animal, a term often used incorrectly to refer to any animal that is said to provide assistance or support of any kind. The American with Disabilities Act (“ADA”) defines Service Animals as “a dog that has been individually trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability”. The ADA specifically prohibits all other species from use as a service animal, with the exception of miniature horses in specific circumstances (a topic for another day). “Dogs whose sole function is to provide comfort or emotional support do not qualify as ‘service animals’ under the Americans with Disabilities Act.” The ADA does not require service animals to wear special vests or harnesses, nor must they be registered or certified with any particular organization. That said, service animals must remain leashed in public – unless it interferes with the animal’s work or the individual’s disability prevents using a leash. Regardless, the service animal must remain under control.
EMOTIONAL SUPPORT ANIMAL
Emotional support animals or assistance animals are recognized and generally protected in particular instances under federal law that includes the Fair Housing Act, the Rehabilitation Act of 1973 (“FHA”) and the ADA, which generally require both public and private organization to make reasonable accommodations for individuals with disabilities who utilize (or seek to utilize) an assistance animal. In that context, an emotional support animal or assistance animal is defined as “an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Under the FHA, a disability is defined as “among other things, a physical or mental impairment which substantially limits one or more of the person’s major life activities.”
Unlike a service dog, an emotional support animal or assistance animal is not required to have specific training. Rather, when evaluating a request for accommodation, entities required to comply with the FHA, the Rehabilitation Act of 1973 and the ADA must consider (among other things) if the “animal provides assistance, performs tasks or services for the person with a disability, or provides emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability.”
Therapy dogs are not service dogs or assistance animals, rather they are dogs with the temperament, disposition and advanced training that qualifies them to volunteer at hospitals, nursing homes, schools and social settings, visiting and bringing smiles and stress relief. Therapy dogs are not regulated by the laws discussed above. Rather, the training programs and certifications – which apply to both dog and handler – are offered by organizations such as the American Kennel Club and others. Therapy dogs do not have the special access to restaurants,
Laura C. Douglas is an attorney with NeJame Law, P.A., with over twenty years of litigation experience representing attorneys, officer & directors and business owners throughout Florida.