Seyfarth Synopsis: Is it a service animal or an emotional support animal? Do I have to allow both? How to tell one from the other, and the rules that apply.

We get a lot of questions about service and emotional support animals. It’s obvious that there is a lot of confusion out there. Here is how to tell one from the other, and the rules that apply to both.

Public Accommodations. Under Title III of the federal Americans with Disabilities Act (ADA) and virtually all state laws, a service animal is an animal that has been trained to perform work or tasks for the benefit of a person with a disability. Emotional support animals—also called therapy or comfort animals—have not been trained to perform work or tasks. Instead, they provide a benefit just by being present. Public accommodations (e.g. restaurants, theatres, stores, health care facilities), are allowed to ask only two questions to determine if an animal is a service animal: (1) Do you need the animal because of a disability? and (2) What work or tasks has this animal been trained to perform? The second question is the key: If the person is unable to identify the work or tasks that the animal has been trained to perform, then the animal is not a service animal.

Under the ADA, only a dog or miniature horse (no, we are not joking) can serve as service animals. The ADA requires public accommodations to allow service animals to accompany their owners anywhere the owners can go, although the Department of Justice made clear a few years ago that they can be prohibited from swimming pools (in the water) as well as shopping carts. The ADA provides no protection for emotional support animals in public accommodations. The Department of Justice has a very helpful FAQ about service animals, and the Washington Post recently published a story that is also useful.

When developing policies, public accommodations must comply with both federal and state law, and some states provide greater protections. For example, in some states, any type of animal (not limited to dogs and miniature horses) can be a service animal provided it has been trained to perform work or tasks. Some states may provide protection for emotional support animals as well. Virtually all states protect service animals in training, which are not addressed by the ADA. Thus, public accommodations must tailor their policies to account for state requirements, or adopt a policy that will comport with the broadest of all state laws nationwide.

Housing. The federal Fair Housing Act (FHA) applies to residential facilities and provides protection for emotional support animals in addition to service animals. Thus, property managers, condo associations, co-op boards, and homeowners associations need to keep this in mind when dealing with requests from homeowners and tenants relating to these types of animals. The Department of Housing and Urban Development’s most recent guidance on this topic is here.

Airplanes. The Air Carrier Access Act (ACAA), not the ADA, governs accommodations for people with disabilities on airplanes. The Department of Transportation (DOT) is responsible for enforcing the ACAA rules. Historically, the rules have required accommodations for emotional support animals, but recent abuses of the rules by passengers seeking to bring all manner of animals such as peacocks and pigs onto planes has caused the DOT to revisit this issue in a pending rulemaking.

Compliance Strategy. All businesses should have a written policy concerning service and emotional support animals that takes into account federal law, state law, the nature of the business, and the ability of employees to make decisions about whether an animal should be allowed onto the premises. Having a written policy and training employees on the policy is key to ensuring that they know how to respond when one of these animals shows up on the premises.