Inclusion of Emotional Support Animals as Service Animals Under the ADA: Creating the Right to Use Dogs to Assist People Living with Mental Health Issues

68 Pages Posted: 12 Nov 2020

See all articles by Amanda Foster

Amanda Foster

Nova Southeastern University Shepard Broad College of Law

Date Written: August 8, 2020

Abstract

This article asserts that Congress should amend the Americans with Disabilities Act (“ADA”) to recognize emotional support animals as service animals. The article analyzes laws and policies from other arenas such as transportation and higher education to demonstrate the need for and potential structure of such change. Indeed, the article proposes specific amendment language based upon this analysis. Providing clarity for all Americans, this expanded, clear language will benefit our society and its goals for inclusion and breaking the stigma of mental illness.

The use of emotional support animals to alleviate or mitigate symptoms associated with mental health issues has been a topic of debate since its inception. On one hand, there is the community of people who have expressed a need to use support animals to help them to participate in society, including while traveling by airplane. On the other hand, the Department of Transportation has had to assess whether allowing support animals on airplanes would pose a direct threat to the safety or health of others. In the air travel context, support animals have been treated as service animals and special rules have been created to manage the situation.

Nonetheless, in most other contexts, support animals are not treated as service animals, so therein lies the confusion. Between the ongoing debate, the need for clarification under the laws, and people’s desire to use emotional support animals to facilitate their participation in society on a daily basis, the law in this area is in a state of flux.

Section II of this article provides the legal background on this issue and describes the current controversy over how to treat service animals and emotional support animals under federal law.

Section III is an overview of the alternative approaches to defining service animal. Specifically, this section looks at the broader definitions of service animal in the contexts of transportation, higher education, and cities and states.

Section IV of this article proposes language that can be used to redraft the ADA’s definition of service animal through the lens of the alternative approaches discussed in this article. This new definition includes the foundational pieces of the current definition regarding traditional service animals plus the inclusion of emotional support animals to provide parity among people with physical disabilities and people with mental health issues.

Section V provides predictions for the future and how the inclusion of emotional support animals as service animals under the ADA may affect society at large.

Broadening the ADA’s definition of service animal to include emotional support animal will have both positive and negative consequences. Nonetheless, the risk that comes with positive change will be worth it in the end. The biggest issue will most likely be how to ensure that users of emotional support animals are legitimate, meaning there needs to be a mechanism in place to handle issues of fraudulent behavior. With the carefully crafted definition of emotional support animal and the robust fraud mechanisms outlined in this article in place, people with mental health disabilities can have the promise of the ADA fulfilled and be fully integrated into society while still protecting the interests of businesses and others.

Keywords: ADA, Service Animal, Emotional Support Animal, Disability Law, Mental Health, ACAA, FHA, Higher Education

Suggested Citation

Foster, Amanda, Inclusion of Emotional Support Animals as Service Animals Under the ADA: Creating the Right to Use Dogs to Assist People Living with Mental Health Issues (August 8, 2020). Western New England Law Review, Vol. 43, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3669792 or http://dx.doi.org/10.2139/ssrn.3669792

Amanda Foster (Contact Author)

Nova Southeastern University Shepard Broad College of Law ( email )

3305 College Avenue
Ft. Lauderdale, FL 33314
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
253
Abstract Views
1,279
Rank
226,787
PlumX Metrics