At the end of 2020 and beginning of 2021, airlines began changing their rules with respect to emotional support animals. United, American, Delta, Jet Blue and Southwest Airlines (as well as many local and regional air carriers) have decided that emotional support animals are not permitted on flights. Trained service dogs, however, are still permitted on flights.
Despite these recent changes, the rules that apply to airlines are not the same as the ones that apply to housing. I have written a number of posts about emotional support animals and where they can go:
- Are We Sure Some Dogs Are Still Allowed?
- Are These Dogs Allowed: Yet Another Case on Emotional Support Animals
- Could a Condominium Face Legal Trouble Because of Residents' Blog Against Emotional Support Animals
These blog posts cover situations when someone requests an emotional support animal in relation to housing. These cases often come up when a condominium or apartment building does not permit pets and someone requests a reasonable accommodation to allow a support animal.
In today's post, I want to make sure that associations and landlords do not get confused and try to follow the recent examples of the airlines.
Defining Our Terms
This is a good time to remember the difference between a "support animal" and a "service animal."
Service Animals and the ADA
A "service animal" is defined by the Americans with Disabilities Act (ADA). The ADA defines a service animal as:
- A dog (and sometimes a miniature horse)
- That is individually, specifically trained
- To perform a task directly related to an individual's disability.
Support Animals and the FHA
A "support animal" is defined by the Fair Housing Act (FHA). A support animal is:
- Any kind of animal
- That does not have any special training
- That alleviates or helps a disability
The Difference Between the ADA and FHA
The Fair Housing Act says that a person with a disability must be given a reasonable accommodation to have equal opportunity to use and enjoy a dwelling, including public and common use spaces. One of these reasonable accommodations can be to permit a support animal, if that support animal helps the person enjoy their housing on an equal footing to people without a disability.
To (over) simplify, the ADA applies to every public place. That means that all businesses and places of public accommodation are required to permit service animals. The FHA only applies to housing.
For example, a housing provider, like a landlord or homeowners' association, must allow emotional support animals in many cases. But places like grocery stores, restaurants and airlines are not housing providers. So, the FHA and the requirements surrounding emotional support animals do not apply to these businesses.
The Airlines' New Rules
Effective on February 11, 2021, the United States Department of Transportation (DOT) revised the Air Carriers Access Act (ACAA) for the transportation of service animals by air. Before this change, the ACAA defined a service animal to include both a service animal under the ADA and a support animal under the FHA.
The change has basically (with one potential loophole) eliminated the FHA definition of support animal.
Airlines are now required to allow service dogs as defined by the ADA. But it can call every other kind of animal - even dogs that are not trained to perform a specific task - a "pet." All the major airlines have excluded emotional support animals. Most of these changes have taken effect on March 1.
The Loophole: Psychiatric Service Dogs
The loophole that the DOT regulations left is to say that a "psychiatric service dog" should be treated the same way as any other service dog. In theory, this is not a change. A psychiatric service dog is still a dog that has special training to perform a task directly related to a person's disability. That is the same as the ADA definition.
But, as an example, it is easy to see a dog that is trained to help guide someone with a vision impairment. It could be a lot fuzzier to see if someone has a "psychiatric disability" and to understand the specific task that a dog is trained to assist with.
I hate to be a cynic, but websites are already popping up that promise to certify dogs as "psychiatric service dogs" for a fee. These websites say that for a person with anxiety, a dog can be trained to calm them down, which meets the "specific training" requirement under the ADA. This sounds a lot like the old definition of an emotional support animal. Except that the on-line providers will charge more to certify specific training.
What does this mean for you?
As far condominiums, HOAs and landlords go, absolutely nothing has changed. You should not think that just because airlines have banned support animals that you are permitted to ban them as well.
Under the FHA, an emotional support animal is not a pet. You need to permit them if it is necessary to allow someone with a disability to enjoy housing.
Originally published March 9, 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.