28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Comfort animals. (Section-by-Section Analysis)

It is important to address the concept of comfort animals or emotional support animals, which have become increasingly popular.  The increased use of comfort animals is primarily by individuals with mental or psychiatric impairments, many of which do not rise to the level of disability.  Comfort animals are also used by individuals without any type of impairment who claim the need for such an animal in order to bring their pets into facilities of public entities.

The difference between an emotional support animal and a psychiatric service animal is the service that is provided, i.e., the actual work or task performed by the service animal.  Another critical factor rests on the severity of the individual's impairment.  For example, only individuals with conditions that substantially limit them in a major life activity qualify for coverage under the ADA, and only those individuals' use of a service animal will be covered under the ADA.  See definition of disability, 42 U.S.C. 12102(2) and 28 CFR 35.104.  Major life activities include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.  Many Americans have some type of physical or mental impairment (e.g., arthritis, anxiety, back pain, imperfect vision, etc.), but establishing a physical or mental disability also requires a substantial limitation of a major life activity.  Traditionally, service dogs worked as guides for individuals who were blind or had low vision.  Since the original regulations were promulgated, service animals have been trained to assist individuals with different types of disabilities.  As a result, individuals with minor impair- ments [sic] may mistakenly conclude that any type of impairment qualifies them for ADA coverage.