A recent article in The New Yorker (“PETS ALLOWED: Why are so many animals now in places where they shouldn’t be?” October 20, 2014) highlights the disconnect between perception and reality when businesses must deal with patrons attempting to bring “emotional support animal” (ESAs) into public areas. The author, Patricia Marx, chronicles five days in which she took various, less-than-cuddly animals (namely, a red-eared slider turtle, a Mexican milk snake, a four-and-one-half feet tall alpaca, a Royal Palm turkey, and a one-year-old pig) around places in New York City and Boston. She attempted to enter public areas with the animals, including museums, high-end fashion stores, and restaurants, and use public transportation. Her purpose? To highlight how little individuals, especially business owners and employees, know about the law surrounding ESAs. The article may also demonstrate what we know from our clients: despite the letter of the law, businesses will go to great lengths, even accepting absurd applications of the Americans with Disabilities Act (ADA), to avoid litigation. Based on Marx’s experiences, businesses rarely challenged her and allowed her to bring all sorts of animals into these businesses when she simply said “I have a letter” and it was “against the law” to exclude the animal. Marx emphasizes that the perception that businesses must accommodate purported ESAs is not only mistaken, but it is also exploited by many ESA owners at the expense of the experience of other customers.

The article raises an important question that businesses are facing on an increasing basis: what do you do when a customer demands that an ESA be allowed to accompany him or her onto the premises? The answer, surprisingly, is not typically based on federal law, but on individual states’ laws and a business’s tolerance of animals on its premises. The ADA, which is routinely cited by individuals who seem to be taking advantage of the perception that ESAs must be granted access, does not mandate free entry of any animal into public accommodations. Only a “service animal” can gain entrance to public accommodations under Title III of the ADA and, since March 15, 2011, the U.S. Department of Justice defined a “service animal” solely as a dog (or a miniature horse) that is individually trained to do work or perform tasks for people with disabilities. 28 C.F.R. §36.104.

In contrast, ESAs are untrained animals that provide solace to someone with a mental condition, and the ESAs that accompanied Marx around New York are not included in the ADA’s definitions. Animals that only provide “emotional support” to people with disabilities, even if those animals are dogs and miniature horses, are specifically excluded from the definition of “service animal” and thus not entitled to access to public accommodations. Even if an ESA is used as part of a person’s medical treatment plan as “therapy animal,” the ADA does not compel businesses to accommodate the animal under Title III. Moreover, according to the ADA regulations, service animals must also be under the control of the owner, either by physical means (such as with a harness or leash) or non-physical means (such as through voice or visual signals) where the user cannot maintain a physical restraint. Thus, even if an ESA is granted access to a business, nothing in the ADA provides the animal unfettered reign to interfere with the experiences of the customers around it.

Even though the ADA does not compel businesses to permit access to ESAs, a few federal and varying state laws may require access in narrow circumstances, thus causing increased confusion for businesses. The Fair Housing Act requires landlords and homeowners associations to provide a reasonable accommodation for individuals with disabilities, which may or may not require that permission be granted to tenants and owners to bring ESAs onto residential properties. The Air Carrier Access Act of 1986 provides that air carriers must permit service animals to accompany passengers under certain restrictions, but does not specifically exclude ESAs from its definition of “service animal.” However, in both the housing and air travel scenarios, the owner of the animal must have a corroborating letter from a health professional regarding the need for the ESA.

Some states have also passed laws that might provide access for ESAs as a reasonable accommodation. Some of these state laws restrict the reasonable accommodation to disabled employees, while others are more general in nature. Thus, while a business generally is not required to allow access for ESAs under the ADA, uncertainty reigns in this area due to other statutes that might provide access in certain situations.

Given the vast confusion surrounding ESA access to public accommodations, businesses are wise to develop plans for addressing customers who present themselves with such animals. The first step is to determine if any state laws where the business operates compel access for an ESA. Equally important is to determine what state laws and regulations, such as health and safety codes, may prohibit the presence of ESAs and whether there may be exceptions for ESAs.

Even if federal and state laws do not compel access for an ESA, many businesses may wish to accommodate such animals (if not otherwise prohibited) if it will avoid unpleasant confrontations and potentially bring a client in the door. Business have alternatives to allowing ESAs full access, including requiring the owner to hold and maintain physical control of the animal throughout the time spent at the business, requiring the animal to be housebroken, or providing a designated area for animals while their owners are on-site. Ultimately, businesses should consider what factors will lead them to refuse access to ESAs and train their employees accordingly. Even with a plan, businesses will likely continue to struggle with the increased demand for ESA access until federal and state laws on the issue can be reconciled.