Can Emotional Support Animals Be Service Animals?

One in five adults in the United States lives with mental illness.

Individuals experiencing mental health crises can benefit from the use of Emotional Support Animals (ESAs) that help relieve loneliness, anxiety, and depression. ESAs are defined as “any animal that provides emotional support alleviating one or more symptoms or effects of a person’s disability.”

The patchwork of laws governing the certification of ESAs, however, often prevents individuals with serious mental health issues from certifying their pets, leaving them without support from their animals in public spaces.

In fact, the Americans with Disabilities Act (ADA) completely excludes emotional support animals from its definition of service animals. Instead, it defines service animals as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability.”

Similarly, the Fair Housing Act requires landlords to provide reasonable accommodations to tenants with a service animal but does not protect ESAs or describe acceptable accommodations.

The lack of definition for ESAs encourages some pet owners—without physical or mental health issues—to attempt to exploit the regulatory ambiguity. In 2023, for example, a passenger attempted to board an airplane with her emotional support skunk but was removed from the flight, as the airline did not allow rodents in the cabin.

Advocates for recognizing ESAs as service animals urge regulators to grant people with mental health issues the opportunity to obtain reasonable accommodations. A recent survey revealed that individuals with ESAs during the COVID-19 pandemic were more likely to experience improvements in their mental health compared to survey respondents without an ESA.

On the other hand, opponents of ESAs claim that it will be easy for owners to misrepresent their pets as service animals, resulting in disruption in planes, apartments, and other public spaces. In addition, ESAs are not currently required to satisfy training requirements for tasks tailored to a handler’s disability or mental health issue, rather they provide general emotional comfort.

In this week’s Saturday Seminar, The Regulatory Review summarizes the work of scholars who offer varying perspectives on how policymakers should classify and regulate emotional support animals.

• In an article for the Western New England Law Review, Amanda M. Bertrand argues that lawmakers should revise the ADA’s definition of “service animal” to include emotional support dogs. Bertrand proposes, however, that the ADA should continue to only recognize dogs as service animals due to the species’ trainable nature and suitability for assisting individuals with disabilities. In addition, Bertrand emphasizes the importance of behavior training for all canine ESAs in public settings for the safety of non-users. Expanding the ADA’s protections to specially trained canine ESAs will afford individuals with mental health issues the same protections as people with physical disabilities who use non-ESA service animals, suggests Bertrand.
• In an article for the University of the Pacific Law Review, Christy Grellas examines the inconsistent registration requirements for ESAs as compared to service animals under the ADA. Grellas argues that the lack of clarity and uniformity stemming from vague regulations has led to tenants fraudulently registering their pets as ESAs. To close these loopholes, Grellas recommends that Congress enact legislation that would strengthen the ESA documentation process and mitigate fraudulent registrations by imposing criminal liabilities.
• In a note for the University of Illinois Law Review, Kathleen E. Okon urges state lawmakers to confine ESA certification requirements only to individuals who maintain a continuous relationship with a mental health provider. Okon points out the ease with which any individual can receive an ESA certification without obtaining a prescription from a licensed mental health physician. For example, online questionnaires that reportedly determine an individual’s need for an ESA should not be recognized by states, urges Okon. To balance this more stringent approach, Okon also suggests that states should consider adjusting their reasonable accommodation standards to ease the certification process for individuals with sufficient documentation and proven animal training.
• To promote access to ESAs and limit the fraudulent misrepresentation of pets, Tallulah Lanier expresses the need for clear revisions that would more narrowly define what constitutes assistive animals in an article for the Indiana Journal of Law and Social Equality. The current ambiguous ESA definition exacerbates the exploitation of accommodations afforded to individuals without a mental health condition or disability, resulting in “absurd examples” of assistive animals being brought on planes or in homes, Lanier argues. Lanier proposes a new definition for ESA that would mirror the language in the ADA’s definition of service animals.
• In an article for the University of Illinois Law Review, Doron Dorfman recommends that regulators reprimand vendors of unofficial service animal vests and those engaged in the “disability con.” Implementing these measures could end the stigma surrounding emotional support animals, notes Dorfman. Dorfman recommends creating a state office, similar to locations where disabled parking permits and discounted public transportation passes are obtained, where pet owners can apply for an ESA permit. These offices can also distribute official service animal identification vests and identification tags to individuals with ESAs, explains Dorfman. Dorfman urges regulators to use ethical nudges to discourage individuals without a medical need for a service animal from misrepresenting their needs. For example, when checking in at a restaurant or flight, a pop-up message would remind the individual that ESAs are limited to people with a disability and that their use of ESAs impacts the availability for others, describes Dorfman.
• The definition of ESAs should be limited to specially trained dogs, argues Caroline J. Cordova in an article for Chapman Law Review. Requiring service animals to be trained could reduce the number of people attempting to misrepresent their pets, suggests Cordova. In addition, training requirements can protect people from the dangers of untrained animals in confined spaces, such as planes and apartments, notes Cordova. A strict definition of service animals would still allow individuals with disabilities to have trained dogs without exposing them to stigma resulting from the public’s distrust of ESA, clarifies Cordova.