—A Weighty Issue
“The Act defines a person with a handicap as (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.
“In New York City, in order to obtain a Service Dog (as defined below), an individual must provide documentation of a disability or need for an accommodation from a doctor or other licensed professional providing psychotherapy pursuant to the Act or NYC Civil Rights Law to the New York City Department of Health and Mental Hygiene. Those granted permission to own Service Dogs are required to further register their dogs as Service Dogs. Service dogs in NYC are issued a special cross-shaped brass tag to identify that the dog has been registered as a Service Dog by the New York City Department of Health and Mental Hygiene.
“More specifically regarding the letter writer’s ADA change in law question, on March 15, 2011, the United States Department of Justice issued revised regulations regarding the Service Dog Law. Under the revised regulations, the ADA now defines “service animal” as “any dog that is individually 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. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition.”
“Additionally, the ADA’s revised regulations maintained the Department of Justice’s position that companion dogs and emotional support animals are not included in the definition of “service animal.” The difference between a “companion dog” and “emotional support animal” from a “psychiatric service animal” is the work or tasks that the animal performs including but not limited to guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, or calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack. The revised ruling states, “the provision of emotional support, well-being, comfort, or companionship… does not constitute work or tasks for the purposes of this definition.”
“However, the ADA’s revised regulations note that the revised regulations do not have any effect on the extent to which accommodations are required under other Federal statutes, like the Act, or NYS Human Rights Law or NYC Civil Rights Law. Under these laws, an individual with a disability may have the right to have an animal other than a dog in his or her home if the animal qualifies as a “reasonable accommodation” that is necessary to afford the individual equal opportunity to use and enjoy a dwelling, assuming that the use of the animal does not pose a direct threat. In some cases, the Act may conflict with state or local laws that prohibit individuals, with or without disabilities, from owning a particular species. Under these circumstances, an individual challenging the law must do so under the Act, not the ADA.
“In New York City, for a tenant to keep a “comfort pet” or “emotional support animal” in a no-pet building, the tenant must provide evidence that he or she has a disability which impedes the use and enjoyment of their apartment. Additionally, the tenant must also identify a fact-specific connection between their disability and the “comfort pet” or “emotional support animal.” Evidence of the tenant’s need for a “comfort pet” or “emotional support animal” can be provided by a doctor or other licensed professional providing psychotherapy. The case law suggests that the documentation contain objective medical findings, rather than being merely limited to opinion.
“Lastly, it is reasonable to have a tenant possessing a Service Dog, “comfort pet”, or “emotional support animal” (collectively “animal”) adhere to the rules and regulations of the building concerning the behavior of the animal provided such rules do not limit the function of the animal in connection with the owner’s disability. Examples of such rules and regulations are leashing the animal, permitted access areas and elevators and being responsible for any damages created by the animal or restricting aggressive and unsafe behavior. Finally, neither the reasonable accommodation laws nor Pet Law protect animals deemed to be a nuisance.”