Laws on service, emotional support animals, growing but much still uncharted - Issues explored at innovative NJICLE seminar

By NJSBA Staff posted 27 days ago

  
C.P. McKenna knows firsthand about the growing problem of fraudulent service animals. His guide dog, Finn, has been attacked six times in 21/2 years, many of them from untrained and out-of-control dogs whose owners tried to pass them off as service animals.

Fortunately, Finn sustained only minor injuries and was able to continue working. McKenna said it is often the case that a service dog has to be retired after it is attacked, even if it only suffers minor injuries, because in the future it may exhibit fear around other dogs, putting its owner in jeopardy.

Fraudulent service animals hurt those who need legitimate service animals to assist them with a disability, said McKenna, a blind attorney who works as director of employment services at Family Resource Network in New Brunswick.

McKenna was among the panelists who spoke at the recent Service Animals and the Law Seminar sponsored by the New Jersey Institute of Continuing Legal Education (NJICLE), the educational arm of the New Jersey State Bar Association.

The panelists covered different aspects of service and assistance animal law, including state and federal laws, such as the New Jersey Law Against Discrimination, the Americans With Disabilities Act (ADA), the Fair Housing Act (FHA) and the Air Carrier Access Act.

Twenty-eight states have passed laws on fraudulent service animals that carry penalties such as jail, fines or community service. A variety of proposed bills are under consideration this year in seven states, McKenna said. He hailed New Jersey’s 2014 passage of Dusty’s Law, which makes an attack on a service animal a crime and triggers an immediate response from law enforcement.

ID debate

McKenna said a contentious issue under debate in the blind and visually impaired community is whether identification cards should be required to prove that an animal is a legitimate service animal.

Under the ADA, individuals cannot be asked to show such proof, but a business is allowed to ask an individual if the animal is required because of a disability and what task or work the animal has been trained to do.

The ADA defines a service animal as an animal that has been trained to perform a particular task for the benefit of an individual with a disability. Those tasks can include pulling a wheelchair, retrieving an object or medication, alerting an individual of an oncoming seizure or serving as a guide to someone who is blind or vision impaired. The ADA recognizes only dogs and miniature horses as service animals.

Service, emotional and therapy animals

The public often confuses an emotional support or therapy animal with a service animal, but they are not the same thing, said A.J. Albrecht, an attorney with Best Friends Animal Society in Maplewood, who was on the panel. The key difference is the training, McKenna said.

The benefit of an emotional support or therapy animal is derived from their presence, as opposed to a task they have been trained to provide. Albrecht takes her therapy dog to schools, nursing homes and hospitals.

Beth C. Manes, of Manes & Weinberg in Springfield, and a former chair of the NJSBA’s Solo and Small-Firm Section, said service animals are covered under the ADA, while emotional support animals are covered under the FHA.

“If a person can establish a need for an emotional support animal, the landlord has to make reasonable accommodations,” Manes said.

Fraudulent emotional support animals seem to be more of a problem than fraudulent service animals, especially in housing, she said.

Incidents involving the use of emotional support animals, both those recommended by a doctor or licensed mental health professional and self-proclaimed by owners, have received widespread media attention in recent years. United Airlines refused to allow a woman from bringing her emotional support peacock on board a flight departing Newark Liberty International Airport last year. And in May, an Alabama man filed a negligence lawsuit against Delta Air Lines and a fellow passenger after he was attacked on a plane by an emotional support dog.

“You can’t take your Shih Tzu, throw a vest on it and now all of a sudden it’s a guide dog,” she said.

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NJICLE is the state’s leading provider of continuing legal education and holds hundreds of programs around the state throughout the year on cutting-edge topics. Upcoming programming includes looking at mental health issues, drone law, and updates on the state’s laws related to cannabis. On Monday, the institute will celebrate volunteers who have contributed to the rich cannon of programming offered to New Jersey’s attorneys. To find out about that celebration, or to learn more about NJICLE’s upcoming programming, visit njicle.com.

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