An emotional support animal (ESA) is a companion animal which provides therapeutic benefit, such as alleviating or mitigating some symptoms of the disability, to an individual with a mental or psychiatric disability. Emotional support animals are typically dogs and cats, but may include other animals. In order to be prescribed an emotional support animal by a physician or other medical professional, the person seeking such an animal must have a verifiable disability. To be afforded protection under United States federal law, a person must meet the federal definition of disability and must have a note from a physician or other medical professional stating that the person has that disability and that the emotional support animal provides a benefit for the individual with the disability. An animal does not need specific training to become an emotional support animal.
In the U.S., federal protection against housing discrimination is afforded to mentally disabled persons under two federal statutes: Section 504 of the Rehabilitation Act of 1973 and the Federal Fair Housing Amendments Act of 1988 (FHAA). These statutes, and the corresponding case law, create the general rule that a landlord cannot discriminate against disabled persons in housing, and if a reasonable accommodation will enable a disabled person to equally enjoy and use the rental unit, the landlord must provide the accommodation. Persons with disabilities may request a reasonable accommodation, such as a waiver of a “no pets policy,” for any assistance animal, including an emotional support animal, under both the FHAA and Section 504
III. Other Support or Therapy Animals
While Emotional Support Animals or Comfort Animals are often used as part of a medical treatment plan as therapy animals, they are not considered service animals under the ADA. These support animals provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, but do not have special training to perform tasks that assist people with disabilities. Even though some states have laws defining therapy animals, these animals are not limited to working with people with disabilities and therefore are not covered by federal laws protecting the use of service animals. Therapy animals provide people with therapeutic contact, usually in a clinical setting, to improve their physical, social, emotional, and/or cognitive functioning.
The Fair Housing Act (FHA) protects a person with a disability from discrimination in obtaining housing. Under this law, a landlord or homeowner’s association must provide reasonable accommodation to people with disabilities so that they have an equal opportunity to enjoy and use a dwelling.8 Emotional support animals that do not qualify as service animals under the ADA may nevertheless qualify as reasonable accommodations under the FHA.9 In cases when a person with a disability uses a service animal or an emotional support animal, a reasonable accommodation may include waiving a no-pet rule or a pet deposit.10 This animal is not considered a pet.
A landlord or homeowner’s association may not ask a housing applicant about the existence, nature, and extent of his or her disability. However, an individual with a disability who requests a reasonable accommodation may be asked to provide documentation so that the landlord or homeowner’s association can properly review the accommodation request.11 They can ask a person to certify, in writing, (1) that the tenant or a member of his or her family is a person with a disability; (2) the need for the animal to assist the person with that specific disability; and (3) that the animal actually assists the person with a disability. It is important to keep in mind that the ADA may apply in the housing context as well, for example with student housing. Where the ADA applies, requiring documentation or certification would not be permitted with regard to an animal that qualifies as a “service animal.”