[CS 10 – 06/2021] REGULATIONS CONCERNING EMOTIONAL SUPPORT ANIMALS IN THE USA – RECOMMENDATIONS FOR VIETNAM

Nguyễn Huỳnh Thơ (QTL42.2)

Ho Chi Minh City University of Law

In the Vietnam National High School Examination 2020, a candidate brought a cat to the exam room as a psychotherapy, hoping that her pet would bring her luck. Although according to Vietnamese law, there is no such regulation relating to bringing “emotional support animals” to the exam room. As a result, this raises questions about this issue. Since cats and other animals can be considered as “emotional support animals” and this kind of animal can become a supportive curing method for patients suffering from mental health problems. It not only helps patients improve their emotions, but also develop their ability to work.[1] Because of the increase of mental illness in Vietnam, there is need of finding solutions for such issue and emotional support animal seems to be one of the effective methods. Accordingly, US law has mentioned regulations in this regard. For that reason, the author would like to write the article “Regulations concerning emotional support animals in the USA – Recommendations for Vietnam” to give an overview of “emotional support animals”, as well as the US regulations regarding this issue, in order to come up with experiences suggested for Vietnam.

Keywords: emotional support animal, USA, Vietnam

1. Overview of “emotional support animals”

Animals are multicellular eukaryotic organisms that form the biological kingdom Animalia. With few exceptions, animals consume organic material, breathe oxygen, be able to move, reproduce sexually and grow from a hollow sphere of cells during embryonic development.[2] Therein, pets, such as: dogs, cats, hamsters, rattles, etc. can be considered as animals.

An Emotional Animal (ESA) is an animal that provides comfort to help relieve the symptoms or effects of a person’s disability. In general, an emotional support animal is an animal, which is not restricted by species. An ESA is also different from a service animal. Service animals are trained to perform specific tasks (such as helping the blind to navigate), while ESA has no specific duty, or even, no training. Therefore, when a patient is suffering from a neurological problem, ESA shall accompany and comfort them. As a result, any animal that provides support, happiness, comfort or assistance to an individual through friendships, unconditional positive attention and affection can be considered as an emotional support animal.

In the United States, people who are diagnosed of mental health disability, may be exempt from certain federal housing and travel regulations if they own an emotional support animal. To get such exemption, they must meet the federal definition of a person with disability and the ESA must provide emotional support to alleviate some of the symptoms or effects of the disability. Those patients must usually present a letter certified from a healthcare provider, stating that the animal provides emotional support can alleviate one or more symptoms or effects of the disability.

Emotional support animals are usually cats or dogs, but they can also be members of other animals. With regard to whether an emotional support animal should be allowed in a rental property, it is thus necessary to perform an individualized examination of the specific assistance animal to determine if it poses a direct threat of harm or would cause substantial property damage, and not to assume that an animal is excluded based upon breed or species. Although a wild or exotic animal might increase risks of disease or potential attack upon people, they may potentially be excluded. Recently, it is recognized that species including guinea pigs and miniature horses as emotional support animals.[3]

2. Regulations concerning “emotional support animal” in the USA

Regulations that allow the inclusion of an emotional support animal on a business or on board may give the service provider the right to refuse admission of an unusual service animals.[4] For example, under the Airline Access Act, airlines are never required to accept unusual animals such as weasels, rodents, snakes and other reptiles, or spiders in the passenger compartment of the plane.[5] This regulation may inadvertently cause many airlines to assume that emotional support animals are also banned from flying given that they are unusual.

However, in case a person needs comfort from ESA, there could be some exceptions. Legal protection against housing discrimination is afforded to people with mental disabilities under two federal statutes: Section 504 of the Rehabilitation Act of 1973 and the Federal Fair Housing Amendments Act (FHAA) of 1988.[6] These statutes and the corresponding case law, create the general rule that a landlord cannot discriminate against people with mental disabilities in housing, and if a reasonable accommodation will enable a person with a disability to equally enjoy and use the rental unit, the landlord must provide such accommodation. Persons with disabilities may request a reasonable accommodation, such as a waiver of a “no pets policy”, for any assistance animal, including an emotional support animal, under both the FHAA and Section 504.[7]

2.1. Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act was enacted in 1973 and makes extensive statements that it is illegal to discriminate against a person with a disability in any program receiving federal financial assistance. However, it was not until 1988 that the United States Department of Housing and Urban Development (HUD) created the regulations under this statute. Section 504 states:

No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance”.

In the context of housing discrimination, this statute creates rules that public housing authorities cannot deny housing for people with disabilities solely due to their disabilities. If any reasonable accommodation can be decided to make housing available for a person with disability, the landlord is required to make such accommodation.[8] Although the statute does not explicitly use the term “reasonable accommodation”, it has been read into the statute by case law and HUD regulations. Hence, emotional support animals could be considered as a “reasonable accommodation”, but the “no pets” policy may get in the way of this regulation.

In order to determine that the “no pets” waiver for an emotional support animal is a reasonable accommodation under Section 504, the tenant must meet the following conditions[9]:

(1) be disabled, which is “otherwise qualified” for assistance,

(2) the person making the request have a disability- related need for an animal assistance

If the disability has already been apparent, the housing provider cannot ask for further information. On the other hand, if the disability and the request for an ESA is not clear, the housing provider can ask for documents relating to the disability and the need of an assistance animal. The example given by HUD is that a person who asks to allow an emotional support animal can provide a letter from a psychologist or mental health provider explaining the role of the animal in providing some disability related assistance. Requests for extensive medical records are not allowed.

If the two conditions above are satisfied, the housing provider is obligated under both Section 504 and FHA to modify a “no pets” rule to allow the person to use the ESA in all portions of the housing unless it would create an undue financial and administrative burden and/or fundamentally alter the nature of the services. Otherwise, the request for ESA may be denied if the animal poses a direct threat to the health or safety of others or would cause substantial physical damage to the property of others that cannot be reduced or eliminated.

The Majors and Whittier Terrace Courts established the basic principles that tenants could be “otherwise qualified” under Section 504 even though it was unable to comply with the “no pets” policy and a waiver of a “no pets” policy can be a reasonable accommodation under Section 504. The Sixth Circuit Court of Appeals heard a case in 2015 from a district court decision that addressed the obligations to modify city zoning rules to allow a miniature horse under both FHA and ADA Title II. That case is Anderson v. City of Blue Ash. The issue was whether Anderson, the plaintiff, could keep a miniature horse, the assistance animal for her daughter with disabilities. The Court then recognized the miniature horse as a reasonable accommodation due to its support to Anderson’s daughter and allowed her to keep the horse.

However, some courts disagree. They have consistently assumed that a tenant, who requires an emotional support animal as a “reasonable accommodation”, must demonstrate the relationship between their ability to function and the companionship of the animal.[10] This mandatory relationship between disability and an emotional support animal has been clarified by several courts. For example, in Janush v. Housing Development Charity (ND Ca., 2000), the U.S. District Court of Northern California argued that reasonable accommodation was a fact-based, not species-based.[11] In the Nason v. Stone Hill Realty Association (1996), a Massachusetts tribunal recognized that there were more reasonable accommodations to reduce the effects of a person’s disability, other than keeping an emotional support animal. Courts are aware that mental distress may occur if a person is forced to give up their emotional support animal, however, it does not support a request for reasonable accommodation claim.

2.2. Fair Housing Act Amendments

While only housing authorities that receive federal financial assistance are subject to Section 504, both public and private housing authorities are subject to the Fair Housing Act regulations. Enacted as part of the Civil Rights Act of 1968, the Fair Housing Act (FHA) focuses on housing discrimination on the basis of race, color, origin or gender. Nevertheless, in 1988, the Federal Fair Housing Act (FHAA) expanded this coverage to include people with disabilities.[12] Moreover, it is discrimination for any person to: “refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas”. Therefore, like Section 504, the FHAA requires landlords to provide reasonable accommodation to tenants, even if they require support from emotional support animals.

According to the FHAA, Section 3602 (h) defines a handicapped person, such as:

(1) A physical or mental disability that significantly limits one or more of the person’s major life activities;

(2) records of having such a disability; or

(3) is considered to have such a disability.[13]

The term “major life activities” is broadly understood to include “activities that are of central importance to daily life”, such as “seeing, hearing, walking, breathing, performing manual tasks, learning, speaking and reproducing”.[14] A person with physical or mental disability may need an emotional support animal to stay calm and balance their psychological state.

The second factor is that the landlord shall learn about the disability or should have known about it. As a result, the landlord also has the right to request supporting documents about the emotional support animal. Tenants who wish to be exempt from the “no pets” policy because of their condition, shall provide a letter from their doctor or mental health professional, stating that the tenant has suffered from a mental disability and the animal is needed to lessen the effects. Then, they shall ask for the animal’s allowance in the rental unit as a reasonable accommodation for their mental disability.[15] Furthermore, mere emotional distress that results from having to give up an animal because of “no pets” policy does not qualify the requirement under federal law. Instead, there must be a connection or relationship between the animals and people with disabilities. The relationship between the ESA and the disability is analyzed under the third element of FHAA housing discrimination case, which is known as the essential requirement that the accommodation will affirmatively improve a disabled tenant’s quality of life. As long as the reasonable accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide such accommodation.

3. The effects of “emotional support animal” in general practice

3.1. Positive effect

In general, there could be some psycho-physiological benefits from social interactions with pets. These benefits include calming, relaxing, reducing anxiety, alleviating loneliness, increasing social interaction, normalizing heart rate, blood pressure, reducing pain, stress, depression and increasing pleasure.[16] Based on the results of these studies, it makes sense that living with an emotional support animal may alleviate symptoms associated with emotional and mental disabilities. HUD states: “Emotional support animals by their very nature, and without training, can reduce depression and anxiety, and/or help relieve stress pain in people with certain medical conditions affected by stress”.

Another factor to consider when recommending a client to adopt an ESA is whether the client has the ability and desire to properly care for an animal, ESA could become a good choice for them. While human-animal interactions are known to assist people with developmental, emotional, social and behavioral disorders, it is important to evaluate whether there are any impairments so serious that the animal was left out or harmed.

Another benefit of having an ESA is that they can be a good substitute for modern conventional medications, such as anti-depressants. Taking the pill on a regular basis cannot be pleasant and could have negative side effects such as nausea, weight gain and insomnia. In today’s world, where people are becoming more and more conscious of their health, emotional support animals may be considered as a less harmful way to deal with such conditions.

Through the benefits and legal provisions mentioned above, it can be seen that the law of the United States has made it possible for people with physical or mental disabilities to receive support from ESA. Moreover, the application procedure to own an emotional support animal in a rental is also quite simple, suitable for those who have difficulties in life. Individuals only need to provide proper documentation to the landlord to have a pet live with them as an ESA in housing typically designated as excluding pets. The judicial system has interpreted this right to fair housing to additionally extend to individuals who wish to have emotional support animals live with them in college or university housing facilities, such as residence halls, dormitories or university-owned apartments.

3.2. Negative effect

An emotional support animal may behave differently than a trained service animal. For example, due to lack of training, an emotional support animal may bark or sniff at others, while service dogs are trained not to do so.[17]

Another disadvantage of having an ESA is that the ESA could be costly. Moreover, the animal has to go through a process to be formally classified as an emotional support animal. This can be done by asking for a letter from a medical professional who will certify that the patient needs the ESA to help ease the symptoms of his/her condition. If this patient is unable to receive such letter, or if their request is denied for any reason, this may prevent the ESA from living and traveling with them.

Furthermore, since the emotional support animal is not trained like a service animal, there is always a risk that they could harm or cause harm to either people or the patient’s house. This is where it is important to obtain documentation from a medical professional. Plus, people with special disabilities, such as an allergy to animal hair, could suffer from allergic attacks caused by an emotional support animal.[18]

Although the U.S. legislation already provides access to ESAs for people with disabilities, there are many loopholes in the legal system that need to be addressed. Laws regulating emotional support animals are complicated and incoherent, leading to easy abuse. For instance, when assessing a tenant’s request for an ESA as a reasonable accommodation, the landlord is permitted to consider the financial and the condition of allowing an ESA in their house. Considerations can also include the potential disturbance the animal may pose to other tenants. Generally, this is a difficult burden for a landlord. But if the ESA is shown to be particularly disruptive or the tenant fails to take proper measures to ensure that the ESA does not bother other tenants, the landlord may be justified in denying the reasonable accommodation or even evicting the tenant.[19] As a result, there should be clarification or regulations regarding these issues, to not only protect the rights of the landlords, but also interests of tenants, as well as the emotional support animals.

4. Experience for Vietnam

In general, there are some advantages and disadvantages when adopting an emotional support animal as a cure for mental problems. They can provide positive social interaction, a calming atmosphere and help reduce depression. On the other hand, they can also be expensive to own and care for, in terms of vet fees, food and time.

In Vietnam, the issue of “emotional support animal” has not been focused, although there have been some cases relating to this issue. For example, in the National High School Examination 2020, a candidate brought a cat to the exam room. She considered this animal as an emotional solution, hoping the cat would give her luck for the exam. Although according to the regulations, animals are not allowed in the exam room, this also raises questions relating to the effects of ESA.[20]

At present, the application of regulations related to “emotional support animals” is not really paid attention in Vietnam, but it is worth analyzing. Since the increase of mental issues in Vietnam, there are needs of researching solutions to cure such illnesses and ESA seems to be one of the effective methods for mental patients. Nevertheless, this method is kind of new to Vietnamese people, therefore, it is needed to be analyzed further carefully. Especially, when a patient wishes to alternate from using modern medicine to ESA, they should ask for advice from a medical professional. He or she will provide on whether that patient would benefit from having an emotional support animal to the treatment plan. There are advantages and disadvantages from the ESA, but it is most important to understand how ESA will affect the patient’s personal situation.

As a result, for the use of ESA, after researching about such method, the government could develop an appropriate legal framework to regulate this issue. Hence, the emotional support animal regulations should focus on four main issues:

First, the government should consult and introduce the regulation relating to emotional support animals through an under-law document and allow experimentation in some big cities with a high prevalence of patients suffering from mental problems. After receiving effective results, it could be considered to be widely applied.

Second, emotional support animals must be assessed at a medical facility following government regulations. This not only helps ensure the safety of the ESA owner and those around them, but also tests the ESA’s ability to provide emotional support. Furthermore, the person requesting for possession of an emotional support animal shall register their animal to the authority department and own a referral document from an experienced medical professional in this field. Because if the health professional is not majored in this issue, it would affect the patient and criminals may take advantage of this.

Third, the government should also regulate where emotional support animals are allowed, as well as the obligations of the ESA owner. This helps the parties to limit risks when disputes arise, moreover, protect their rights and interest.

In conclusion, “emotional support animal” is a new mental curing method in Vietnam and it takes time to develop. However, it cannot be denied about the benefit from these animals. Researching about this method not only increases the opportunities for patients to get access to appropriate psychological treatment, but also helps them protect their legitimate rights and interests in the course of their treatment.

REFERENCES

Books and research papers

1. Ann L. McNary ‘Vetting” Service Dogs and Emotional Support Animals’ (2018) 15(1) Innovations in Clinical Neuroscience 49

2. Christopher C. Ligatti, ‘No Training Required: The Availability of Emotional Support Animals As A Component of Equal Access for the Psychiatrically Disabled Under the Fair Housing Act’ (2010) DePaul University College of Law

3. In re Kenna Homes Coop., 29644 [2001] WV Supreme Ct. App

4. Jeffrey N. Younggren, Jennifer A. Boisvert and Cassandra L. Boness, ‘Examining Emotional Support Animals and Role Conflicts in Professional Psychology’ (2016) 47 (4) Professional Psychology: Research and Practice 255

5. Julia Cresswell, The Oxford Dictionary of Word Origins (tái bản lần thứ 2, NXB New York: Oxford University Press 2010)

6. Majors v. Hous. Auth. of DeKalb Ga., 652 F.2d 454 [1981] United States Court of Appeals for the Fifth Circuit

7. Molly K. Crossman, ‘Effects of Interactions With Animals On Human Psychological Distress’ (2016) 73 Journal of Clinical Psychology 7

8. Rebecca F. Wisch, FAQs on Emotional Support Animals (NXB Michigan State University, 2015)

9. Rebecca J. Huss, No Pets Allowed: Housing Issues and Companion Animals (NXB Animal Law Review at Lewis and Clark School 2005) 11

10. Tara A. Waterlander, ‘Some Tenants Have Tails: When Housing Providers Must Permit Animals to Reside in “No-Pet” Properties’ (2012) 18 Animal Law Review

11. Whittier Terrace Associates v. Hampshire, 532 N.E.2d 712 [1989] Appeals Court of Massachusetts

12. 4. Judge David L., ‘Right to Emotional Support Animals in “No Pet” Housing: Fair Housing Information’ (2017) Bazelon Center 8/2017 6

Internet

1. Cynthia K. Chandler, ‘Confirming the benefits of emotional support animals’ (Counseling Today, 20/4/20215) <https://www.emotionalpetsupport.com/wp-content/uploads/2017/08/Emotional-Support-Animal-Fact-Sheet.pdf>

2. Daniel S. Rich ‘A “Ruff” Guide to Emotional Support Animals in the Landlord-Tenant Context’ (American Bar Association, 15/3/2016) <https://www.americanbar.org/groups/litigation/committees/real-estate-condemnation-trust/practice/2016/emotional-support-animals-in-landlord-tenant-context/

3. John Trasvina, ‘Service animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs’ National Network <https://adata.org/legal_brief/assistance-animals-under-fair-housing-act-section-504-rehabilitation-act-and-air>

4. Karin Jacobson–Brulliard, ‘Therapy animals are everywhere. Proof that they help is not’ (Washington Post, 3/7/2017) <https://www.washingtonpost.com/news/animalia/wp/2017/07/02/therapy-animals-are-everywhere-proof-that-they-help-is-not/>

5. “Pros and Cons of an Emotional Support Animal in California” <https://mooshme.com/pros-cons-emotional-support-animal-california/>

6. Thùy Dương, ‘Tổng hợp những ‘học cụ’ có 1-0-2 thí sinh mang vào phòng thi THPT Quốc gia 2020’ (Tuổi trẻ và xã hội) <https://tuoitrexahoi.vn/691-820-5-thi-sinh-mang-gi-vao-phong-thi-thpt-quoc-gia-2020-172106.html>

7. US Department of Transportation, ‘Service Animals (Including Emotional Support Animals)’ <https://www.transportation.gov/individuals/aviation-consumer-protection/service-animals-including-emotional-support-animals>

8. Volaris, ‘Volaris Travelling with a Service Animal’ (Volaris) <https://cms.volaris.com/en/travel-info/special-services/service-animals/>


[1] Molly K. Crossman, ‘Effects of Interactions With Animals On Human Psychological Distress’ (2016) 73 Journal of Clinical Psychology, 7

[2] Julia Cresswell, The Oxford Dictionary of Word Origins (tái bản lần 2, NXB New York: Oxford University Press 2010)

[3] Rebecca F. Wisch, FAQs on Emotional Support Animals (NXB Michigan State University 2015)

[4] Ann L. McNary, ‘Vetting” Service Dogs and Emotional Support Animals’ (2018) 15(1) Innovations in Clinical Neuroscience, 49

[5] Jeffrey N. Younggren, Jennifer A. Boisvert and Cassandra L. Boness, ‘Examining Emotional Support Animals and Role Conflicts in Professional Psychology’ (2016) 47 (4) Professional Psychology: Research and Practice, 255

[6] Majors v. Hous. Auth. of DeKalb Ga., 652 F.2d 454 [1981] United States Court of Appeals for the Fifth Circuit

[7] Whittier Terrace Associates v. Hampshire, 532 N.E.2d 712 [1989] Appeals Court of Massachusetts

[8] David L., ‘Right to Emotional Support Animals in “No Pet” Housing: Fair Housing Information’ (2017) Bazelon Center 8/2017, 6 <https://www.emotionalpetsupport.com/wp-content/uploads/2017/08/Emotional-Support-Animal-Fact-Sheet.pdf> truy cập ngày 10/3/2021

[9] John Trasvina, ‘Service animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs’ National Network <https://adata.org/legal_brief/assistance-animals-under-fair-housing-act-section-504-rehabilitation-act-and-air> truy cập ngày 17/5/2021

[10] Tara A. Waterlander, ‘Some Tenants Have Tails: When Housing Providers Must Permit Animals to Reside in “No-Pet” Properties’ (2012) 18 Animal Law Review

[11] Majors v. Hous. Auth. of DeKalb Ga., 652 F.2d 454 [1981] United States Court of Appeals for the Fifth Circuit

[12] Majors v. Hous. Auth. of DeKalb Ga., 652 F.2d 454 [1981] United States Court of Appeals for the Fifth Circuit

[13] Rebecca J. Huss, No Pets Allowed: Housing Issues and Companion Animals (NXB Animal Law Review at Lewis and Clark School 2005) 11

[14] In re Kenna Homes Coop., 29644 [2001] WV Supreme Ct. App

[15] Tara A. Waterlander, ‘Some Tenants Have Tails: When Housing Providers Must Permit Animals to Reside in “No-Pet” Properties’ (2012) 18 Animal Law Review.

[16] Jeffrey N. Younggren, Jennifer A. Boisvert and Cassandra L. Boness, ‘Examining Emotional Support Animals and Role Conflicts in Professional Psychology’ (2016) 47 (4) Professional Psychology: Research and Practice, 255

[17] Volaris, ‘Volaris Travelling with a Service Animal’ (Volaris) <https://cms.volaris.com/en/travel-info/special-services/service-animals/> truy cập ngày 10/3/2021

[18] Karin Jacobson–Brulliard, ‘Therapy animals are everywhere. Proof that they help is not’ (Washington Post, 3/7/2017) <https://www.washingtonpost.com/news/animalia/wp/2017/07/02/therapy-animals-are-everywhere-proof-that-they-help-is-not/> truy cập ngày 10/3/2021

[19] Daniel S. Rich ‘A “Ruff” Guide to Emotional Support Animals in the Landlord-Tenant Context’ (American Bar Association, 15/3/2016) <https://www.americanbar.org/groups/litigation/committees/real-estate-condemnation-trust/practice/2016/emotional-support-animals-in-landlord-tenant-context/> truy cập ngày 17/5/2021

[20] Thùy Dương, ‘Tổng hợp những ‘học cụ’ có 1-0-2 thí sinh mang vào phòng thi THPT Quốc gia 2020’ (Tuổi trẻ và xã hội) <https://tuoitrexahoi.vn/691-820-5-thi-sinh-mang-gi-vao-phong-thi-thpt-quoc-gia-2020-172106.html> truy cập ngày 10/3/2021