On planes, in shopping malls and restaurants, service and support animals seem to be everywhere. The use of service animals and emotional support animals has grown exponentially over the past few years. In 2011, the National Service Animal Registry (NSAR), a commercial enterprise that sells certificates, vests, badges and identification cards for support animals, registered 2,400 assistance animals. As of June 13, over 196,098 animals have been registered through NSAR. The increased presence of animals for physical and emotional support has raised questions about what it takes to qualify as a service animal and whether businesses and public places are also required to permit emotional support animals on the same basis as service animals under the Americans with Disabilities Act (ADA).

The ADA protects the rights of individuals with a wide range of disabilities including physical, sensory, psychiatric, intellectual and other mental disabilities, see 42 U.S.C. Sections 12132, 12182. The ADA's definition of  “service animals” is limited to dogs (and in some cases miniature horses) that are trained to perform tasks to assist an individual with a disability. The Department of Justice (DOJ) regulations define a service animal as a: “guide dog, signal dog or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.”

The training and tasks performed by the service animal must be directly related to the individual's disability. Animals that meet the ADA definition of service animals may not be excluded from places of public accommodation and public service programs. The ADA requires covered entities to provide people with disabilities with “reasonable accommodations,” which can take a number of forms. The ADA applies to employment, state and local governmental programs, and certain categories of privately provided accommodations made available to the public.

Permitting a person to be accompanied by a service animal can be considered a reasonable accommodation under the ADA but animals are a unique kind of accommodation because of the ways they can affect others around them. The protection of support animals can directly affect others who may have phobias, asthma, or allergies. Because animals take up space, they can also affect the space that others have and can expect to have.

Service animals under the ADA are given distinctly different treatment under the law than emotional support animals (ESAs), which provide a therapeutic benefit through companionship to individuals with mental or psychiatric disabilities. While service animals are limited to dogs and miniature horses, ESAs are not limited to any particular type of animal. They are also not specifically trained to perform tasks and do not enjoy the protections given by the ADA. Although an individual with a mental health disability can have a service animal, the animal must do more, in the current view of the Department of Justice, than provide emotional comfort and support to qualify as an ADA service animal. Though they do not receive federal statutory protection under the ADA, ESAs are provided accommodation in a number of different contexts, including employment, housing and transportation.

Protections for both service animals and ESAs are also provided for by federal agencies including the Department of Justice, the Department of Transportation and the Department of Housing and Urban Development, as well by state and local laws. While there are some variations by state, the following are generally consistent expectations: the animal must be under the control of the handler; the animal must not disturb, harm or create a risk to others; an owner can be charged for damage caused by their animal; documentation of the disability and the relationship of that disability to the animal accommodation is required. The extent of documentation required and the types of animals allowed varies according to state laws.

Air travel is the only type of transportation that has federal regulatory guidance for animal accommodations under 14 C.F.R. Section 382.55. The Air Carrier Access Act, 49 U.S.C. Section 41705 (2012) (hereinafter ACAA), was the first federal law to directly prohibit discrimination on the basis of disability on airlines. Since its enactment, the Department of Transportation has issued a number of regulations applying to a range of issues, including the status of emotional support animals. The regulations clarify that ESAs are not included under the ACAA.

The Department of Transportation acknowledges ESAs as qualifying for limited protections, but limits access of ESAs to individuals with a diagnosed mental or emotional disorder and allows carriers to insist on “recent documentation from a licensed mental health professional to support the passenger's desire to travel with such an animal.” Documentation must be provided on the letterhead of a licensed mental health professional stating that the passenger has a mental disability recognized under the Diagnostic and Statistical Manual of Mental Disorders (DSM IV); the passenger needs an animal as an accommodation for travel or activities at the destination; the person providing the assessment is a licensed mental health professional and the passenger is under his care; and details regarding the mental health professional's license type and jurisdiction.

The protections provided by the DOT for airline travel are not absolute. The agency clarifies that an airline carrier may refuse to permit the animal on a flight if its behavior is inappropriate or disruptive to other passengers or carrier personnel, though it must offer the passenger alternative accommodations. A carrier is also permitted to limit access to animals depending on their size and weight and any direct threat to the health and safety of others, including significant disruption of cabin service.

Housing Accommodations

ESAs are also granted certain protections in housing contexts. The Fair Housing Act prohibits discrimination, requiring reasonable accommodation in the sale or rental of most housing, see 42 U.S.C. Section 3604 (FHA). The Department of Housing and Urban Development (HUD), indicates a willingness to interpret an appropriate animal's functions sufficiently broadly to include emotional support: “Examples of disability-related functions, include … providing emotional support to persons with disabilities who have a disability-related need for such support.” HUD specifies that it is unlawful for a person to refuse to make reasonable accommodations to afford a person with a disability an equal opportunity to use and enjoy a dwelling unit, including public and common use areas. Denying housing to an applicant with an ESA because of a no-pets policy is an example of a violation of the “reasonable accommodations” requirement. In order for an animal to qualify as a reasonable accommodation, it must be shown that the individual has a disability as defined in the Fair Housing Act, the animal is needed to assist with the disability, and there is a demonstrable relationship between the disability and the assistance that the animal provides.

Growth of Use of ESAs

Federal protection of ESAs and their significant growth has triggered concerns regarding potential abuse of policies that accommodate these animals. The number of people seeking to bring their pets into various public places by getting them certified as ESAs leads some to believe that tighter restrictions are needed. Many websites offer to provide an “official” certification card and service animal vests using only self-verification of disability. Stories of turkeys, alligators, parrots and even kangaroos being spotted on planes and in restaurants have become more frequent, underscoring the concern that many people are taking advantage of the current inconsistent state of the law concerning support animals. Exploitation of the law has created skepticism of individuals with legitimate service animals, thereby undercutting the effectiveness of statutory and regulatory protections. The absence of uniformity and consensus also leads to confusion among owners and managers of places of public accommodation and places additional burdens placed upon the disabled.

For example, the DOJ discourages businesses from inquiring into anything but what a service animal does for the handler. The DOT allows a carrier to utilize a special tag issued by a state to a service animal. HUD allows a housing authority to ask for a letter from a health care professional to verify a relationship between the handler's disability and the service provided by the animal. Thus, individuals with disabilities may have to provide specific evidence about their assistance animal for one type of activity, but provide something completely different for another activity.

Proposed Solutions to Increase Uniformity

Greater uniformity between the states would strengthen the effectiveness of protections for those with service animals. Strengthened protections would additionally serve to reduce confusion between service animals and ESAs. A centralized certification system could also be put into place, allowing state licensing authorities to verify if an individual's service animal has been properly trained to perform tasks related to the disability. A consistent standard of training and certification will serve to reduce discrepancies and confusion. Verifying a service dog's status should be done by reviewing a certificate of training issued by an approved training school or organization that the state recognizes. Those who decide to train their own dogs should have the option of having their animal tested by the licensing authorities in order to verify the dog's skills to perform tasks related to the individual's condition. This could also be done by having the applicant get their animal tested at a recognized training organization. By implementing this system, states will cut down on the number of questionable service animals while bolstering the legitimacy of those who truly qualify.

The increasing use of support animals justifies a need for clearer and more specific laws. Though federal statutes and regulations may serve to provide protection to service animals and ESAs in certain transportation and housing settings, problems remain regarding the perceived legitimacy of those using support animals that serve to undermine protections enjoyed by those with disabilities. This effect can be properly combated with the passage of consistent state laws involving steps to properly identify and certify service animals, thereby weeding out those using the title improperly and strengthening protections for individuals the laws are truly intended to cover.

—University of Pennsylvania Law School student Sophie Kletzien contributed to this article.

Penny Conly Ellison is an adjunct professor at the University of Pennsylvania Law School, teaching animal law and ethics, and a member of the board of directors of the Pennsylvania SPCA.