The waters surrounding Emotional Support Animals (ESAs) can be murky at best. Those furry companions that provide emotional comfort have become an increasingly hot topic over the last few years… especially since the pandemic.
With more and more families utilizing ESAs, it is so important to know the ins and outs. If you are new to this topic, you can read up on some interesting facts about ESAs and the difference between ESAs and Service Animals here.
The Legal Scoop on ESAs
Now before we get into anything else, it bears mentioning that ESAs are not the same as service animals. This is an extremely important distinction, especially once you start diving into the legal pool.
Service animals are specially trained, usually for several months, to do specific tasks. ESAs are animals who help with managing the emotional aspects of mental health conditions like anxiety or depression and providing comfort. While important, there is no special training required or specific tasks for them to do. Under the Americans with Disabilities Act, ESAs are NOT considered service animals.
In order for a person to legally have an ESA, the owner must be considered to have a qualifying mental health or psychiatric disability by a licensed mental health professional (e.g., therapist, psychologist, psychiatrist, etc.), which is documented by treatment history and a properly formatted prescription letter.
No prescription, no ESA. PHAs, landlords, and tenants ALL need to be up-to-speed on the legal stuff when it comes to ESAs.
Other than what the ADA has to say, two big laws are in play here:
Fair Housing Act (FHA): This law is all about preventing housing discrimination based on disability. According to the Fair Housing Act, ESAs are considered a reasonable accommodation for people with disabilities. So, even if a place has a “no pets” rule, housing providers, including PHAs, have to make room for ESAs.
Section 504 of the Rehabilitation Act of 1973: This one’s for federally funded housing programs. It’s all about equal access and no discrimination against folks with disabilities, including those with ESAs.
So, what does that all mean exactly?
For PHAS: If someone asks to have an ESA in their housing, they may require reasonable accommodation. PHAs should have a straightforward and easily accessible process for them to follow. Keep it simple, so folks can request what they need easily.
PHAs should treat reasonable accommodations for ESAs the same as any other reasonable accommodation in terms of documentation and verification. It’s okay to ask for proof from a qualified mental health professional to confirm the need for an ESA.
For Owners/Landlords: An applicant cannot be denied based on their need for an ESA… even if there is a “no pets” policy. Breed and weight restrictions, as well as pet fees, also do not apply to ESAs. However, landlords can still hold the tenant accountable for any damages caused by the animal to the property. Also note that if the ESA is a nuisance in any way, a landlord can have the animal removed by pursuing legal course of action.
It is recommended to have an amendment for your lease that covers Service Animals and Emotional Support Animals to ensure both you and the tenant are legally protected, and any policies and procedures are clearly communicated.
For Tenants: It is important to emphasize the need for the correct documentation in order to legally have an Emotional Support Animal. Plainly put, getting an ESA letter from an online source is not a legal avenue. PHAs have the right to request documentation verifying the need for any reasonable accommodation.
Tenants are required to be in control of their animal at all times. If any ESA is not being handled properly, the ESA could be removed, or the tenant could be asked to vacate. Any provisions in the lease referring to ESAs must be followed. Breaking the terms of the lease can be grounds for eviction or even termination from the program.
Knowing the rules and following them helps create a positive and inclusive environment where everyone can feel at home. By setting up straightforward procedures and playing by the ESA rules, we can all make sure we are doing our part to support mental health and everyone’s well-being.