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Emotional Support Animal Letters – Q&A

What is an emotional support animal (also called “assistance animal”)?
An emotional support animal is not a pet. An emotional support animal is a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability. The person seeking the emotional support animal must have a verifiable disability (the reason cannot just be a need for companionship). The animal is viewed as a “reasonable accommodation” under the Fair Housing Amendments Act of 1988 (FHA or FHAct) to those housing communities that have a “no pets” rule. In other words, just as a wheelchair provides a person with a physical limitation the equal opportunity to use and enjoy a dwelling, an emotional support animal provides a person with a mental or psychiatric disability the same opportunity to live independently. Most times, an emotional support animal will be seen as a reasonable accommodation for a person with such a disability. Failure to make reasonable accommodations by changing rules or policies can be a violation of the FHA unless the accommodation would be an undue financial burden on the landlord or cause a fundamental alteration to the premises. The United States Department of Housing and Urban Development (HUD) uses the term “assistance animal” to cover any animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.  (FHEO Notice: FHEO-2013-01 at page 2). An emotional support animal is one type of assistance animal allowed as a reasonable accommodation to a residence with a “no pets” rule.

How do I prove my emotional support dog?

The only proof you need is the ESA letter written by a licensed professional stating your need for an emotional support dog. To be clear, if you do obtain an ESA letter, you are also not required to “register” your dog on any website.

What is the difference between a service animal and an emotional support animal?
Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. These tasks can include things like pulling a wheelchair, guiding a person who is visually impaired, alerting a person who is having a seizure, or even calming a person who suffers from Post-Traumatic Stress Disorder. The tasks a service dog can perform are not limited to this list. However, the work or task a service dog does must be directly related to the person’s disability. Service dogs may accompany persons with disabilities into places that the public normally goes. This includes state and local government buildings, businesses open to the public, public transportation, and non-profit organizations open to the public. The law that allows a trained service dog to accompany a person with a disability is the Americans with Disabilities Act (ADA).
An emotional support animal is an animal (typically a dog or cat though this can include other species) that provides a therapeutic benefit to its owner through companionship. The animal provides emotional support and comfort to individuals with psychiatric disabilities and other mental impairments. The animal is not specifically trained to perform tasks for a person who suffers from emotional disabilities. Unlike a service animal, an emotional support animal is not granted access to places of public accommodation. Under the federal Fair Housing Act (FHA), an emotional support animal is viewed as a “reasonable accommodation” in a housing unit that has a “no pets” rule for its residents.

 Can animals besides cats and dogs act as emotional support animals/assistance animals?
Yes, an assistance animal is not limited to a cat or dog. HUD specifically states that “[w]hile dogs are the most common type of assistance animal, other animals can also be assistance animals.” (FHEO Notice: FHEO-2013-01 at page 2). Again, the assistance animal will undergo an individualized assessment to determine whether the assistance animal in question poses a direct threat to the health and safety of others. A wild or exotic animal that poses a greater risk of attack or disease to other residents could be denied based on this individualized assessment. It should be noted that a case in 2015 considered the use of a miniature horse as an assistance animal under the FHA and a case in 2012 dealt with a guinea pig as an assistance animal (find links to these cases here).

Does an emotional support animal need specialized training?
HUD defines an emotional support animal as an animal that “provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” (FHEO Notice: FHEO-2013-01 at page 2). These animals do not need specialized training. In fact, HUD states that, “[f]or purposes of reasonable accommodation requests, neither the FHA nor Section 504 requires an assistance animal to be individually trained or certified.” (FHEO Notice: FHEO-2013-01 at page 2). While training is not required for an assistance animal, one court has stated that an assistance animal must facilitate the disabled person’s ability to function.

Does the Fair Housing Act (FHA) apply to all housing?
The Fair Housing Act (FHA) does apply to almost all housing types including those for sale or rent. This includes apartments, condominiums, and single family homes. Here is how HUD describes what housing is covered:

What Types of Housing Are Covered?
The Fair Housing Act covers most housing. In very limited circumstances, the Act exempts owner-occupied buildings with no more than four units, single-family houses sold or rented by the owner without the use of an agent, and housing operated by religious organizations and private clubs that limit occupancy to members.
The FHA would then cover homes in a planned community with a “no pets” restriction, owned or rented condominiums with a “no pets” covenant, and apartments with a “no pets” clause in the lease. As long as those housing units do not fall within listed exceptions as explained by HUD, landlords or housing associations must comply with the FHA.

What does a housing provider or landlord consider when a request for an emotional support animal/assistance animal is made?
There are only two questions that HUD says a housing provider should consider with a request for an assistance animal as a reasonable accommodation:
(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?
(FHEO Notice: FHEO-2013-01 at page 2). A “no” answer to either of the questions means that a housing provider is not obligated to make a reasonable accommodation according to HUD. This may mean that the person does not meet the definition of disability or that the assistance animal does not help with symptoms of the disability. If the answer is “yes” to both, then HUD states the FHA requires an exception to a “no pets” rule. Note that many courts have considered this issue of the “nexus” or connection between the assistance animal and its ability to reduce the effects of the person’s disability. The emotional support animal must alleviate some symptom(s) of the disability.

What documentation do I need to provide to have an emotional support animal/assistance animal?
If a person needs an emotional support animal to help alleviate the symptoms of a disability, he or she must first make the request to his or her landlord. HUD states the following in its FHEO Notice: “Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal.” (FHEO Notice: FHEO-2013-01 at page 3). Most sources indicate that the request should be in writing and explain how the reasonable accommodation helps or mitigates symptoms of the disability. While the tenant or owner does not need to disclose the disability, he or she will need to provide documentation from a doctor or other health professional. According to HUD, a physician, psychiatrist, social worker, or other mental health professional can provide documentation that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. (FHEO Notice: FHEO-2013-01).
The documentation is typically a note from his or her doctor. This link from the Bazelon Center for Mental Health Law provides guidance on this exact issue. There is a sample letter, which can be found at http://www.bazelon.org/wp-content/uploads/2017/04/ESA-Sample-Letter.pdf and further detailed information on assistance animals (http://www.bazelon.org/wp-content/uploads/2017/04/2017-06-16-Emotional-Support-Animal-Fact-Sheet-for-Website-final.pdf). Such a letter would be the way a person could verify the need for an emotional support animal with his or her landlord.

 Can a landlord or housing provider ask details about my disability?
While a landlord or housing provider may ask for documentation of the disability-related need for the assistance animal, he or she may NOT ask for personal medical details. HUD states that a housing provider “may not ask an applicant or tenant to provide access to medical records or medical providers or provide detailed or extensive information or documentation of a person’s physical or mental impairments.” (FHEO Notice: FHEO-2013-01 at page 4).

Can a landlord or housing provider delay granting my request for an emotional support animal/assistance animal?
This is a difficult question to answer that will depend on the circumstances of an individual request. HUD specifically says that “[a] request for a reasonable accommodation may not be  . . .  unreasonably delayed.” (FHEO Notice: FHEO-2013-01 at page 4). There is no specific time period given in which a request must be granted. In one case, a condominium association requested detailed information and submitted continuous inquiries into the tenant’s medical history over the course of many months. The court found that the delay resulted in a “constructive denial” of the disability accommodation request for his assistance animal. This means that the condo did not outright deny the request, but that their actions could be interpreted as a denial.

What other areas of my housing complex can I take my emotional support animal/assistance animal?
HUD indicates that an assistance animal is allowed “in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.” (FHEO Notice: FHEO-2013-01 at page 3). This would generally include a tenant’s residence and tenant common areas of the building (for example, a party room open only to tenants and their guests, but not members of the public). If there is an area of the building open to members of the public, some sources indicate that emotional support animals can be excluded (but service animals must be allowed. See pages 4 and 5 of http://www.disabilityrightsnc.org/sites/default/files/SelfAdvocacyPacket-Animals%20in%20Housing.pdf for more examples). One federal district court case indicated that a reasonable accommodation for an assistance animal does not provide “unrestricted access” for the animal.

Can a landlord or housing provider ban my emotional support animal/assistance animal based on breed?
According to HUD, “[b]reed, size, and weight limitations may not be applied to an assistance animal.”  (FHEO Notice: FHEO-2013-01 at page 3). Instead, a housing provider may only determine if the specific assistance animal in question poses a direct threat to the health and safety of others. This determination of a “direct threat” must be based on “individualized assessment that relies on objective evidence about the specific animal’s actual conduct.” (FHEO Notice: FHEO-2013-01 at page 3). It may not be based on fears about a certain type of animal or evidence from damage done by previous animals of the same type. For example, if a dog has been previously declared a dangerous dog, this may indicate that the dog poses a direct threat in an individualized assessment. However, breed alone will not result in this determination. This reasoning by HUD has been upheld in at least two U.S. district courts, which can be accessed here.
An issue sometimes arises where a housing provider/landlord’s insurance company has restrictions on breeds of dogs in the insured’s policy. The insurance company may label certain breeds of dogs as “dangerous” in the policy. A memorandum issued by the Office of Fair Housing and Equal Opportunity (FHEO) issued some guidelines to directors on how to handle this issue in cases of discrimination. The memo reiterates that each reasonable accommodation determination must be made on a case-by-case basis. An accommodation is considered unreasonable if it imposes an undue financial and administrative burden on a housing provider’s operations.