We’re all familiar with dogs being used as service animals, probably the most common example would be for persons who are deaf or blind. Highly trained dogs are also used to help individuals that have physical disabilities that limit, impair, or prevent certain necessary functions for an independent life. Less well-known uses for service animals could be for the detection of imminent seizures or even dogs who can detect sudden changes in blood glucose levels. In more recent years animals that are being used for “emotional support” have become commonplace. In the past ten years, the controversy surrounding these animals and their rights has come to the forefront of discussions related to the American’s With Disabilities Act (ADA). While some federal laws have been expanded to include ESAs, they are not as broad, nor do they protect as many people who require service dogs or emotional support animals as does the state of California especially when it comes to employment laws.
In legal terms, emotional support animals (ESA) are considered pets except for two specific situations that require reasonable accommodations; travel and residential. Domesticated animals that provide support to its disabled handler, whether it be for companionship, affection, non-judgmental regard or acting as a distraction from the issues of daily life fall under the definition of an emotional support animal. While these animals are typically cats or dogs, other domesticated animals can fill this role. In order for an individual to seek reasonable accommodation, they must be diagnosed with a mental disability that significantly limits one or more activities in their daily life by a qualified mental health professional.
An example of a mental disability that may be covered under the provision for an emotional support animal could be an individual who suffers from anxiety. Particularly, those who suffer from the most extreme forms of the disease. Therapy programs that have been designed to help them lower their anxiety or prevent panic attacks may use support animals as one of the coping mechanisms. For many, an ESA means the difference between hiding from public life and becoming an active participant in their recovery.
While the vast majority of service animals are dogs or cats, any domesticated animal may be qualified as an ESA, however, there are certain limitations as to what is acceptable. The type of disability and the needs of the person must be taken into consideration. If the needs of the disabled person are limited to a residential setting, any legal species of any age could qualify. This includes cats, dogs, mice, rabbits, birds, hedgehogs and ferrets but other species may also qualify. It is important to note as well, that the Department of Housing and Urban Development enforce rules regarding the allowance of service and emotional support animals. While service animals are required to have specific training, neither the Fair Housing Act (FHA) nor the Rehab Act requires training for an ESA including basic obedience. Only properties that receive federal funds are covered under the Rehab Act. In a residential community, ESAs are subject to specific regulations including requirements for registration, vaccination, and prohibitions.
The Department of Transportation (DOT) provides protections for ESAs but because of special safety concerns, the restrictions are far more stringent than HUD’s rules for FHA. Though the Air Carrier Access Act (ACAA) allows disabled handlers the right to transport their ESA in the cabin with them and free of charge, unusual animals are excluded under the DOT’s rules. This includes snakes, reptiles, rodents, spiders, and ferrets. Other species may also be denied by the carrier including miniature horses, pigs, and monkeys. If you are traveling by air with your ESA, it is advisable to contact your carrier well in advance of travel due to increasing demands for additional information. Some carriers not only require proof of the ESAs training but request a letter from a licensed health care professional validating a mental health disability and the traveler’s need for the animal in question.
Anyone dependent upon ESAs should also understand that the DOT’s rules for other forms of mass transit (bus, commuter rail, ferries, etc.) that are covered by the ADA do not require providers to consider emotional support animals in the same manner as they do other support animals. Local providers are allowed to classify them as pets under their pricing policies or to ban them completely though some providers choose to treat them as they would service dogs. Additionally, when traveling it is also up to the disabled individual to seek pet-friendly locations during their travels as hotels, inns or any form of transient lodging is not required to provide to treat ESAs different from pets.
Thanks to California’s Fair Employment and Housing Act, individuals who are seeking jobs, or are already employed are protected from workplace discrimination if they suffer from a physical or mental medical disorder. Individuals whose disability is disabling, potentially disabling or even if it is perceived to be disabling are protected. Additionally, individuals who have been diagnosed with “special education” disabilities are included in protections. This protection applies to the use of assistive animals as well. California defines assistive animals as a being a trained animal used by a person with a disability. This includes guide, signal, service, and psychiatric service dogs. The definition has also been expanded to include dogs or other animals that provide emotional or other support including those suffering from traumatic brain injuries or mental disabilities such as major depression or other conditions that may benefit from an ESA.
Service dogs are specially trained to recognize and respond to an individual’s disability-related needs. California does not require a support animal to have any special training to perform work or tasks related to the disability in order to be covered under the disability laws.
Employers are required to work with employees to accommodate their disability in reasonable ways including making an exception to an employer’s rules about not bringing pets to work. Although the federal government mandates that private employers who have fifteen or more employees are required to make a reasonable accommodation, California lowered the requirement to employers who have five or more employees. Federal, state and local governments must make reasonable accommodations regardless of the number of employees.
Even though California has included ESAs in the accommodations for persons with disabilities, there were some protections that were given to employers as well. The law allows employers to require that an assistive animal meets certain expectations such as being free from offensive odors and acts appropriately (ex: house-broken) and does not endanger the health or safety of anyone in the workplace including the disabled individual. Additionally, the employer may require that the service animal is trained to provide assistance for the employee’s disability unless it is an ESA. ESAs are not required to train for any specific duty. Employers may also request an employee or potential employee provide medical documentation from a healthcare provider when the disability is not obvious. Documentation from doctors or other providers including clinical psychologists, clinical social workers, marriage and family therapists or even acupuncturists are accepted under California law.
Employers are not required to provide reasonable accommodations under specific circumstances. Reasonable accommodation includes any appropriate measure that would allow an employee with a disability to perform the essential functions of his or her job. California regulations include permitting job applicants or employees to bring assistive animals to the worksite as a specific example of a possible reasonable accommodation. (California Code of Regulations, Title 2, Division 4.1, Subchapter 2, Article 9, Section 11065(p)(2)(B).) If the accommodation is unreasonable or puts an undue hardship on the employer, they may be exempt from the laws. Examples of undue hardships might include”
Landlords may not discriminate against disabled individuals including refusing to rent, charge a pet deposit or evict due to the need for an emotional support animal. Although landlords are permitted to ask for appropriate documentation verifying the disability and the need for the ESA, there is no requirement to prove the animal is certified.
Emotional support animals do not have unlimited protection for housing rights under either the federal or state guidelines. If animals pose a threat to the health or safety of others or if they would cause substantial property damage, landlords may deny renters the right to live with an ESA. This exception is limited, however, and great care should be taken on part of both the tenant and landlord when navigating this delicate issue.
The federal government and the state of California have made specific laws protecting service or emotional support animals in housing, travel, and employment. Protections for service animals have been designed specifically for public places whereas support animals do not enjoy those same protections.
Before obtaining an emotional support animal, individuals should gather as much information on the type of animal desired and the local municipality’s requirements. Being informed about your rights and educated regarding the needs of the animal are an important step that will allow you to be better prepared for any issues that may arise.
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