Service Animal v. Emotional Support Companion: Do You Know the Difference?

Oct. 15, 2018

Service animals are used by both businesses and individuals for various reasons.  Specifically, dogs, have been used by individuals for many years as seeing-eye-dogs to assist individuals with visual deficits.  While this is widely accepted, labeling pets as emotional support companions has created confusion regarding whether businesses and employers are required to allow an individual to have the animal with them or not. 

 

Service Animals under the ADA

A service animal is defined as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” (28 C.F.R. §36.104)  The critical trait of a service dog is that it has been individually trained to assist the individual with a disability.  The family dog would not be qualified as a service animal. 

 

Employers and Service Animals

If an individual with a disability has a service dog, employers may be required to provide the individual with accommodations including using of the service animal in the workplace.  However, the service animal must be trained to perform work or tasks directly related to the individual’s disability.  If the dog provides general companionship or completes tasks that are not directly related to the individual’s disability, then it would not qualify as a service dog under the definition. 

 

When an employer is unsure whether a dog is a service animal, they should ask very specific questions such as (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform.  Employers should exercise caution when approaching the subject and should retain counsel if they are not sure how to handle a situation. 

 

Emotional Support/Comfort Animals

Emotional support or comfort animals are a broader class of animals that encompass many different types of animals including dogs, cats, or goats.  These animals may be used in therapy or medical treatment, but they are not considered service animals under the ADA.  These animals are not specifically trained like a service dog would be and they are not limited to working with people with disabilities.  While they may not be considered as service animals, they may still be considered a reasonable accommodation for an employee under the ADA.  If an employee requests an accommodation to have an emotional support animal present in the workplace, the employer can engage in the interactive process to identify the disability and the reasonable accommodations it can offer to an employee. 

 

Housing

Under the Fair Housing Act, both service animals and companion animals may qualify as a reasonable accommodation. In 2013, the U.S. Department of Housing and Urban Development issued as statement regarding HUD providers’ treatment of service animals.  The guidance stated the ADA’s definition of a service animal did “not limit housing providers’ obligations to make reasonable accommodations for assistance animals under the Fair Housing Act and Section 504 [of the Rehabilitation Act].”  This requires entities receiving HUD funds to utilize a broader definition of assistance animals to ensure they provide reasonable accommodations to recipients of assistance through HUD programs.

 

When a HUD provider receives a request for reasonable accommodation to possess an assistance animal in a dwelling, the provider should evaluate the request based on two questions.  First, does the person seeking to use and live with the animal have a disability?  Second, does the person making the request have a disability-related need for an assistance animal?  If the answer to both questions is yes, then the provider may have to modify a “no pets” policy to accommodate the reasonable request since the FHA and Section 504 would apply. 

 

What Can a Business Do?

If your business is concerned about distinctions between service animals and support animals, it should contact an experienced attorney to help identify the relevant laws that govern the business’s operations and whether the business is required to provide reasonable accommodations.  Each situation is unique and must be analyzed on a case by case basis. 

 


Written By:
Kimberly Lowe

For almost 20 years Kim Lowe has lawyered from the trenches. Kim lawyers from experience, using her knowledge of the law and understanding of how both for-profit and nonprofit business enterprises operate.

Rachell Henning is a third- year student at Mitchell-Hamline School of Law's innovative Hybrid program. Rachell is an Avisen Fellow who enjoys spending time with her husband and two young daughters when she is not working or studying.

Bill Egan is a Seasoned Employment Law Attorney backed by over 33 years of proven, veteran experience. He specializes in navigating businesses through conflict resolution in the workplace.

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