by David B. Haber and Rebecca Newman Casamayor / Published December 2015
On July 20, 2015, the U.S. Department of Justice, Civil Rights Division (DOJ), released a memorandum entitled “Frequently Asked Questions about Service Animals and the ADA,” in which it clarified the definition of a service animal, as well as the rules for bringing service animals into public places (ADA Memo). Significantly, the DOJ directly answered the question of whether emotional support, therapy, comfort, or companion animals are considered service animals of the ADA: they are not. However, as the DOJ noted, there is a difference between an emotional support animal, which provides general support and comfort to benefit a person’s emotional state, and a psychiatric service animal, which can detect certain psychiatric/mental disabilities or attacks and which can “take a specific action” to avoid the symptoms of same.
The Florida legislature also recently passed a law clarifying the definition of a service animal. The law, codified at F.S. Section 413.08, provides that a service animal “means an animal that is trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” The statute then goes on to list examples of the work or tasks the service animal may perform, but is careful to state that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for purposes of this definition.”
In the FHA context, as interpreted by the Department of Housing and Urban Development’s Memorandum from April of 2013 (HUD Memo) the term “assistance animal” refers to 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.” Per that description, unlike the description under the ADA, an “assistance animal” may include an emotional support animal, which provides general comfort or relief to a person with a mental or emotional disability—meaning the animal does not have to perform a specific task or take specific action to assist the disabled person in order to qualify as a reasonable accommodation for the disabled person.
Both the DOJ’s July 20 Memorandum, as well as F.S. Section 413.08(1)(d), seem pretty straightforward that an emotional support animal is not a service animal. However, it is important for housing providers, such as condominium and homeowners associations, to remember that they are governed by a different and sometimes higher standard when analyzing reasonable accommodation requests pertaining to assistance animals. That standard is the Fair Housing Act (FHA), which provides fewer restrictions on the type of assistance animal that may qualify as a reasonable accommodation. In fact, F.S. Section 413.08(6)(c) references this distinction by stating “[t]his subsection does not limit the rights or remedies of a housing accommodation or an individual with a disability that are granted by federal law or another law of this state with regard to other assistance animals.”
While housing providers may be inclined to point to the new ADA Memo or Florida law’s definition of service animals in order to deny a resident’s reasonable accommodation request for
an emotional support animal, that strategy is likely to result in significant legal exposure. Condominium and homeowners associations should consult with their legal advisors to establish a policy and procedure on how the association evaluates these types of requests, in order to strike a balance between protecting those persons who really need an emotional support animal and weeding out those who seek to take advantage of the system.
David B. Haber,
Founder, Haber Slade, P.A.
Rebecca Newman Casamayor
Associate Attorney, Haber Slade