Companion Animals Provide Emotional Support and Legal Obligations

Recent stories about bringing companion animals, including pigs, monkeys, birds, and even a turkey and a snake on airplanes were all over the news, triggering the airlines to clarify their policies. Since there is little federal law to create consistent rules, and a huge variety in state law, legal scholars agree that all sorts of confusion will still prevail. The new rules created by Southwest Airlines, effective Sept 17, does distinguish between service animals and emotional support animals. Southwest welcomes only dogs, cats and miniature horses which have been fully trained to assist with a physical or psychiatric disability, without any documentation. Although it may ask for “credible verbal assurance that the animal is a trained service animal.” However, for emotional support animals, at the time of departure you’ll need to present a “complete, current letter from a doctor or licensed mental health professional,” that complies with federal law, as explained below.

No Legal Standards for Certification

How do you know if the dog or cat is considered a service animal or an emotional support animal? Legally, there are no standard rules for certifying that a specific animal has been trained to assist with a specific disability.  Traditionally, well respected non-profit organizations, such as Leader Dogs for the Blind, have taken the lead in creating programs to certify dogs who perform specific tasks to enable the disabled. Because there is no federal regulation of such certifications, numerous internet businesses sell documentation that owners may need for public accommodations of their companion animals.  Without federal rules that create consistency, and enforcement of such rules, it’s nearly impossible to determine whether documentation issued by these internet certification services is fraudulent or legitimate. As a result, 19 states have criminalized the fraudulent misrepresentation of a pet as a service or support animal.

When is documentation required?

If you choose to get a companion dog for emotional support, are you required to carry around documentation to prove that your dog has been trained to support your needs? It depends. If your dog is trained to help alleviate stress or anxiety by doing a specific task, it may actually be a service dog not just an emotional support dog. For example, service dogs for anxiety disorders can be trained to provide tactile stimulation, such as licking your face, to help disrupt an emotional overload, or to provide pressure against your chest or abdomen to create a calming effect during moments of distress. Having your companion dog trained to perform these service tasks may provide much greater legal protection than any registry or documentation purchased on the internet.

As discussed in a recent law review article, five different federal laws have different rules, and Washington has its own rules.  Only two of the federal laws address emotional support animals.

The Washington Law Against Discrimination, WALD, only addresses service animals trained to assist a person with disabilities, and the Washington State Human Commission refers to federal law for questions about emotional support animals.  A new Washington law, effective in January 2019 creates the risk of civil penalties up to $500 for misrepresenting the status of a service animal.

Both the Washington law and the federal Americans with Disability Act, specify that any place of public accommodation cannot require a person with a service animal to produce documentation, such as medical documentation or proof that the animal has been certified, trained or licensed as a service animal. It also cannot inquire about the nature or extent of a person's disability. Unless the service provided is obvious, like a leader dog for the blind, two inquiries made be made to determine whether an animal qualifies as a service animal:

  • Is the animal required because of a disability?

  • What work or task has the animal been trained to perform?

Rules regarding both service animals and emotional support animals are found in two federal laws; The Air Carrier Access Act, ACAA, applicable to airlines, and the Federal Housing Act, FHA, applicable to public housing.  Both laws allow companies to ask for documentation for emotional support animals that have not been trained for specific tasks. The documentation should be on letterhead of a licensed mental health professional and include statements that

  • the person has a mental or emotional disability;

  • the person needs support from the animal ;

  • the individual providing the assessment is a licensed mental health professional, and the passenger is under his or her professional care; and

  • the date and type of the mental health professional’s license and the state or other jurisdiction in which it was issued.

The laws also provide exceptions that give discretion whether to deny access to service animals that are disruptive, uncontrollable or not housebroken. A judge in Ohio continued to allow a miniature horse in his courtroom as a companion animal, even after it defecated twice during the proceedings!   

During the divorce process, it is not unusual for the parties to suffer increased anxiety that should be addressed by a mental health professional. If your mental health professional agrees that a companion animal can help your condition, let us know so that we can also help guide you through the legal issues that arise when taking your companion animal out into the public.

Molly B. Kenny
Founder and Principal Divorce Attorney
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