28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

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, primarily with 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 animals in order to bring their pets into places of public accommodation.

The difference between an emotional support animal and a legitimate 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 currently qualify for coverage under the ADA, and only those individuals will qualify to use a service animal.  See 42 U.S.C. 12102(2) (defining disability); 28 CFR 36.104 (same).  Major life activities include functions such as caring for oneself, 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 there to be 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 many different types of disabilities. In some cases, individuals with minor impairments who are not individuals with disabilities under the Act have mistakenly concluded that any type of impairment qualified them for the ADA's protection of the right of individuals with disabilities to use service animals.