Service, Therapy, and Emotional Support Animals
| Publication year | 2015 |
| Pages | 69 |
Articles
Animal Law
Service, Therapy, and Emotional Support Animals
By Gabriela Sandoval.
Animal Law articles are sponsored by the CBA Animal Law Committee.
Coordinating Editor
Kate A. Burke, Durango, of Colorado Animal Law, LLC —(970) 385-7409, kburke@coloanimallaw.com
About the Author
Gabriela Sandoval, Managing Attorney at Gabriela Sandoval & Associates, LLC, has recently expanded her law practice to include legal services for adult and child victims of personal injury and wrongful death. Her legal work began in 2004 with a focus on animal protection issues. Her practice grew to include child protection issues. She is pleased to pursue justice for victims of injury and wrongful death. Contact Sandoval directly at g@coloradoinjurylaw.org or visit her practice online at www.coloradoinjurylaw.org.
There are important differences in the particular functions and, consequently, the laws that relate to the animals generally referred to as "assistance animals." This article provides a brief overview of select laws and the legal distinctions among service, therapy, and emotional support animals, and the rights and obligations attached to the different classifications.
People reap a variety of benefits from the human/animal connection and bond over a wide range of contexts. As opposed to being ordinary animal companions,[1] assistance animals actively and effectively help people, most often in a professional work environment or by mitigating a disability. Individuals who have a physical disability or medical illness may wish to have an animal for assistance. People have done so effectively for over a century.[2] Today, assistance animals are increasingly used to help people with invisible disabilities, such as a disorder or syndrome, hearing impairment, mental illness, or emotional condition where the animal is therapeutic for the individual. In many instances, confusion can arise as to the legal status of those animals, especially with respect to where their owners can take them.
Types of Assistance Animals
For purposes of clarifying the many types of animals discussed in this article, it is important to start with a few definitions:
1) "assistance animal" refers to any type of service or support animal;
2) "service animal" refers to an animal as defined by the Americans With Disabilities Act;
3) "therapy animal" refers to an animal that provides comfort to third parties; and
4) "emotional support animal" refers to an animal that is prescribed to an individual diagnosed with a mental illness or emotional condition and that may be considered to be a reasonable accommodation.
The continued development in the specializations of assistance animals, especially dogs, is impressive. For example, a seizure alert dog assists a person diagnosed with a seizure condition during, after, or even shortly before an oncoming seizure actually occurs.[3] A diabetes alert dog assists a person with diabetes by identifying the chemical body changes that occur as insulin levels increase or drop.[4] The diabetic individual can then take appropriate immediate action to remedy the situation. A mobility assistance dog helps an individual by performing physical tasks, such as carrying necessary items, pushing elevator buttons, and opening and closing doors.[5] A sensory signal or social signal dog (SSIG) is trained to assist a person diagnosed with autism spectrum disorder.[6] A psychiatric service dog assists someone with psychiatric illness and can help an individual who engages in dangerous self-harming behaviors by identifying the behavior and preventing or interrupting the behavior and then redirecting the individual or even calling 911.[7]
Some animals are trained to provide comfort and affection but are not specifically trained to perform work or a task for an individual who suffers from emotional disabilities. These animals are trained to provide relief and consolation to people who are in hospice, long-term care, a hospital, mental health treatment facility, or retirement home. Therapists may use animals by providing their clients an alternative to traditional talk therapy, referred to as animal-assisted therapy or psychotherapy.[8]
Court facility dogs assist the legal process and testifying witnesses who demonstrate a compelling need for emotional support. For example, a court facility dog may be present during a forensic interview in a child abuse or sex assault case or when a fragile witness (usually a child) is present or testifying in court. The dog's main function is to provide comfort and mitigate fear and anxiety during questioning by law enforcement, a forensic interviewer, or an attorney.[9]
Animals also perform work for people not because of any disability but as important members of a team and to assist in accomplishing a goal or mission. The most common examples are police dogs. Police dogs include but are not limited to: human scent dogs, contraband substance detector dogs, and explosive detection dogs. Human scent dogs assist in tracking, trailing, and search and rescue. Contraband substance detector dogs assist in identifying explosives and narcotics.
There are also arson dogs and military service animals. Arson dogs assist firefighters by sniffing out accelerants that may have caused a fire. Arson dogs have also saved people who were trapped in a fire. Long ago, these dogs were used to help firefighters with horses that pulled the firefighter stagecoaches. Arson dogs, typically Dalmatians, historically had a rapport with the horses and kept them calm and together during emergencies and while the firefighters worked to put out fires.
Military service animals have assisted military personnel in a variety of ways. For example, in war-torn regions, rats have been used to sniff out land mines.[10] They are less expensive than service dogs, are small, are resistant to most tropical diseases, and have a highly developed sense of smell.[11] Rats do not trigger the mines due to their light weight and their training related to the mines' unique odor.[12] Just as rats have been used to help military personnel on land, dolphins and sea lions have been used by the Navy to detect mines in the ocean.[13]
Legal Definitions of Assistance Animals
There are many factors that will determine if, and to what extent, the individual person and/or the animal is protected under the law (and under which law, or whether more than one law is applicable). Service animals are specifically defined in the ADA as limited to dogs (and in some cases miniature horses[14] ) that are trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.[15]
It is the disability of the individual, not the character of the animal, that triggers protection under the ADA. The requisite training and work or tasks performed by the service animal must be directly related to the handler's disability.[16] Under the ADA, the mere provision of emotional support, well-being, comfort, or companionship does not constitute work or tasks for purposes of the definition of service animal.[17] State or local ordinances may define an assistance animal more broadly than the ADA does. Consequently, it is important to be aware of any additional rights granted under these laws. The ADA'S definition does not affect or limit the broader definition of "assistance animal" under the federal Fair Housing Act (FHA), Section 504 of the Rehabilitation Act,[18] or the broader legal protections granted to aircraft passengers by the Air Carrier Access Act.[19]
Therapy animals are trained to provide comfort and affection to people who may or may not have a form of disability. They are commonly owned by the handler, who considers the animal to be a personal pet.[20] Therapy animals often work alongside their handler to assist others in settings such as hospitals, assisted living environments, mental health facilities, and schools, or with clients during therapy sessions.
A therapy animal has no special rights of access, except in those facilities where they are welcomed.[21] They may not enter businesses with no pets policies or accompany their handler in the cabin of airplanes, regardless of their therapy animal designation.[22] They are not legally defined by federal law or by Colorado statute.
Emotional support animals provide a therapeutic benefit to their owners/guardians through companionship. An emotional support animal is not limited to any particular type of animal. The animal is a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability.[23] Unlike a service animal, an emotional support animal is not specifically trained to perform tasks and is not protected under the ADA. However, under the FHA, an emotional support animal may be viewed as a "reasonable accommodation" in a housing unit that has a no pets rule for its residents.[24]
Select Statutes Applicable to Assistance Animals
Legal distinctions related to service animals are found in various Colorado statutes. The most relevant distinctions are found in Colorado's Civil Rights Law, Criminal Code, and local breed-specific legislation.
Civil Rights Law
In addition to the legal protections and limitations referenced above, there are other laws to be aware of, some of which may apply to a potential litigant. Colorado's definitions, protections, and remedies vary depending on the legal issue and applicable statute.
Federal law will prevail over state law unless state law provides greater or equal protection.[25] With regard to rights of people with disabilities, Colorado's definition of disability has the same meaning as set forth in the implementing...
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