Service Animal or Emotional Support Animal … what’s the difference?

We have all most likely been in a grocery store or a Starbucks and witnessed a customer trying to pass their little dog or even cat off as a “service animal”. I don’t know about you, but this really bugs me, especially when there is a legitimate service animal with their disabled handler close by that is being bothered or harassed by the untrained pet.

Well, California allows persons with disabilities to bring trained service dogs and psychiatric service dogs, but not emotional support animals, into all public places. Several different California laws set forth the rights of people with disabilities who use animals to assist them.

These laws include:

  • Unruh Civil Rights Act
  • California Disabled Persons Act (CDPA)
  • Fair Employment and Housing Act (FEHA)
  • Americans with Disabilities Act (ADA)

All of these laws protect the rights of people who use “service dogs” and “psychiatric service dogs”.

Here in California, it’s a little bit trickier as to which laws apply to what types of animals. Here is the break down of how California defines such animals …

The specific California law that applies depends on three separate factors:

  • The kind of animal
  • How the animal helps the disabled individual
  • The place or setting in question

“Service Dog”

Under California law, a “Service Dog” is a dog that has been specifically trained to assist an individual with his/her specific disability. Notice that the dog must be trained, not just merely be a dog with a cute vest on its back.

Service dogs must be trained for specific tasks based on their handlers’ disability such as:

  • Fetching items their handler has dropped or need
  • Minimal protection work
  • Rescue work
  • Pulling a wheelchair or somehow assisting their handler physically

Remember, the ADA authorizes the use of miniature horses in limited circumstances and California allows this as well.

“Psychiatric Service Dog”

California doesn’t have a separate definition for “psychiatric service dog,” but a dog that is individually trained to help a person with a mental disability with specific requirements is considered a service dog, and an individual that uses such a dog is entitled to the same rights under the law as someone with a physical disability that uses a service dog.

Psychiatric service dogs are still considered a service dog. But instead of the dog being trained to assist their handler with physical tasks, they are trained to assist handlers’ with mental disabilities and perform tasks such as:

  • Alerting a person exercising poor judgment due to bipolar disorder that may hurt themselves
  • Respond to an owner’s panic attack by initiating contact to comfort the individual
  • Waking someone with clinical depression and coaxing them out of bed at a specific time of day

These two types of service animals are protected under the Federal ADA as well as California state law. What is not considered a service animal is an ESA.

Emotional Support Animal (ESA) is defined as a dog or other animal that is NOT trained to perform a specific task directly related to an individual’s disability. Instead, the animal’s owner derives a sense of comfort, calmness, safety or well being from the animal’s companionship and presence. An ESA does not need to be a dog at all but can be virtually any kind of domestic or non-domestic, wild or tame animal the individual chooses.

California protects true service dogs in public areas and guarantees people who use trained service dog’s full and equal access to all types of businesses.

The guarantees in California for service dog access are even broader than what the ADA provides. California allows service dog access to:

  • All places that the general public is invited including restaurants, hotels, movie theaters, retail shops, concert halls and all government buildings.
  • All medical facilities, hospitals, clinics and private doctors office.
  • All forms of private or public transportation including airplanes, trains, buses, street trollies, boats and motor vehicles.

Public places must allow all disabled persons to bring in their service dog and when necessary, they must modify their policies’ and procedures to accommodate the disabled team. California even goes so far as to allow an authorized trainer to bring in a service dog in training even if the trainer is not actually disabled.

So here is the huge difference between a “service animal” and an “emotional support animal”.

California access laws as well as the Federal ADA guarantee access into places of public accommodations for all service animals. Emotional Support Animals do not have that right. In fact, in California, pretending to be an owner of a service dog is a criminal misdemeanor punishable by a fine of up to $1,000 and or up to six months in jail. The question is, who is willing to enforce these laws?

California does NOT protect the use of ESA’s in public places. But it does protect the use of ESA’s in housing situations. Landlords, multi-family housing management and home owner associations need to treat this topic very carefully when receiving a request from a resident or owner claiming to have a psychiatric need for such an animal and requires this animal be allowed in all of the common use areas within their housing development.

That is different from a retail shop, hospital, movie theater or any other place of public accommodation that clearly enforces a “No Pet” policy.

The Federal ADA defines “disability” as a physical or mental impairment that “substantially limits” a major life function. But in California, a disability is defined as a physical or mental impairment that merely “limits” not “substantially limits” a major life activity, which simply means that the impairment must make the achievement of the major life activity difficult.

A mental disability in California includes any mental or psychological disorder such as:

  • Intellectual disability
  • Clinical depression
  • Bipolar disorder
  • Organic brain syndrome
  • Emotional or mental illness of any kind
  • Learning disabilities

Any of these disorders can “limit” an individual’s major life activity such physical, mental, social activities and working.

So, basically there are only two categories that we are dealing with here.

  • Service animals used by physically disabled/ psychiatric service animals by mentally disabled.
  • Emotional Support Animals used by any non-disabled person as a means of comfort and companionship

The confusion for many small and large businesses alike is that they don’t understand the difference between the two and are nervous to ask questions when confronted with such an issue.

Keep in mind … the only place an “emotional support animal” is allowed by law is in housing. If someone is trying to bring their pet into a place of public accommodation and they claim they have permission or that law protects them, then we must assume they have either a physical or mental disability or they are merely trying to “get away with” having their pet with them.

A doctor must determine that a patient with a mental disability or illness would benefit from the companionship of an emotional support animal and must write a letter supporting the request by the patient to keep the ESA in “no pets” housing or to travel with them in the cabin of an aircraft. That’s It!!!

This doctor’s letter cannot be used as a “hall pass” if you will to bring their pet into all businesses. This type of activity is illegal and extremely dangerous for real disabled service animal teams.

Trained service dogs are put through years of training and are required to be safe, obedient and task orientated before they are ever teamed with a handler. They are safe, non-aggressive and are trained to blend in with others around it.

Emotional support animals are NOT! They are pets. They may not be house broken and in many cases are aggressive or at the very least unpredictable.

Remember, customers that bring their pet into your business are putting others at risk and are putting you and your employees at risk.

Be smart but be safe when dealing with this issue.

If you have any questions regarding this topic please feel free to contact me, Chris, directly.

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