When Must Businesses Permit “Emotional Support” Animals?

A woman in Snowmass was recently awarded $50,000 after her HOA failed to allow her to stay at her condominium complex with her emotional support dog. The U.S. District Court for the District of Colorado found that the HOA’s failure to offer a reasonable accommodation was a violation of the Fair Housing Act (FHA).

What is an emotional support animal, and how is it different from a service dog?

Emotional support animals are dogs and other animals that provide emotional support and comfort to their owners. The FHA considers an emotional support animal to be an “assistance animal,” which is not a pet and not limited by species.

The Americans with Disabilities Act (ADA) defines a “service animal” as a dog that has been individually trained to do work or perform tasks for an individual with a disability. Because emotional support animals have not been trained to perform a specific job or task, they do not qualify as service animals under the ADA.

What does this mean for businesses?

ADA Rules Regarding Emotional Support Animals

Businesses and other public entities are not required to allow emotional support animals into their businesses. Although some State or local governments have laws allowing emotional support animals into public spaces, neither Colorado nor Denver has such a law.[1]

In situations where it is not obvious that a dog is a service animal, business owners may ask only two specific questions:

(1)    Is the dog a service animal required because of a disability?

(2)    What work or task has the dog been trained to perform?

Business owners are not allowed to request any documentation for the dog, require that the dog demonstrate its task, or inquire about the nature of the person’s disability. Moreover, these questions may not be asked when it is obvious what service the dog provides.

FHA Rules Regarding Emotional Support Animals

The FHA applies to almost all types of housing, including those for sale or rent, such as apartments, condominiums, and single-family homes. When considering a request for an assistance animal as a reasonable accommodation, housing providers should consider the following two questions:

(1) Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?

(2) Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?[2]

If the answer to either question is no, then the housing provider is not obligated to make a reasonable accommodation to its “no pets” policy.

Any business with questions regarding FDA or ADA compliance should contact Liz Hartsel at Fortis Law Partners.

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