Can you suggest guidance for landlords to understand what needs to be done regarding reasonable accommodation requests for assistance animals under Fair Housing laws and ADA compliance?
The Department of Housing and Urban Development (HUD) “Notice on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs” may provide guidance to landlords regarding reasonable accommodations to persons with disabilities who require assistance animals.
Landlords do have certain legal obligations under the Fair Housing Act (FHA), and the Americans with Disabilities Act (ADA) in regard to animals that provide assistance to individuals with disabilities.
As stated in the HUD notice, an assistance animal is not a pet. An assistance animal is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. A housing provider must understand his responsibilities under both the FHA and the ADA definitions of an assistance animal.
Fair Housing
Under Fair Housing guidelines, a service animal and an emotional support animal are considered to be the same – an assistance animal. The FHA does not require assistance animals to be trained or certified.
A landlord’s pet policies and pet restrictions cannot be used to deny or limit housing opportunities to persons with disabilities who require the use of an assistance animal because of their disability.
After receiving a request for a reasonable accommodation for an assistance animal, a landlord must consider the following questions:
- Does the person seeking to use and live with the animal have a disability – a
physical or mental impairment that substantially limits one or more major life activities?
(2) Does the person making the request have a disability-related need for an assistance
animal?
If the answers to both questions are yes, the landlord is required to modify a no pets rule or provide an exception to pet policies that will permit a person with a disability to use an assistance animal in all areas of the premises where persons are normally allowed to go. If in allowing access to all areas would impose an undue financial and administrative burden on the landlord or would fundamentally alter the nature of the landlord’s services, the reasonable accommodation request may be denied.
If the person’s disability is readily apparent but the need for an assistance animal is not, the landlord may ask the person to provide sufficient documentation that establishes that the person has a disability and that the assistance animal will provide some type of disability-related assistance or emotional support. However, the landlord may not ask for documentation if the disability or disability-related need for an assistance animal is readily apparent.
A landlord may not unreasonably delay a reasonable accommodation request, unreasonably deny a request, nor condition the request on payment of fees, deposits, or other terms and conditions applied to applicants or tenants with pets.
ADA
Landlords do have separate and different obligations for assistance animals under the ADA than under the FHA.
ADA regulations narrowly define a service animal as any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. The provision of emotional support by an assistance animal does not constitute work or tasks for the purposes of this definition. Accordingly, trained dogs are the only species of animal that may qualify as a service animal under the ADA.
However the ADA definition does not limit a landlord’s obligations to make reasonable accommodations for assistance animals under the FHA.
In ADA covered facilities, an animal must only meet the ADA definition of a service animal to be allowed entrance into the covered facility.
A covered entity cannot ask about the nature or extent of a person’s disability. A covered entity may make two inquiries to determine whether an animal qualifies as a service animal under ADA. Those inquiries are:
(1) Is this a service animal that is required because of a disability?
(2) What work or tasks has the animal been trained to perform?
These inquiries are the only two inquiries that an ADA-covered facility may make even when an individual’s disability and the work or tasks performed by the service animal are not readily apparent.
A covered entity may not make these two inquiries when it is readily apparent that the animal is trained to do work or perform tasks for a person with a disability.
When multiple laws apply, a housing provider should apply the ADA service animal test first to avoid possible ADA violations. If the animal qualifies under ADA requirements as a service animal, the animal must be permitted to accompany the disabled person to all areas of the facility where persons are allowed to go. If the animal does not meet the ADA service animal requirements, then the housing provider must evaluate the request according to the guidance provided by the Fair Housing Act.
Note that reasonable accommodation provisions under state statutes and local ordinances may differ from federal regulations. Pending legislation in some states may impact how landlords apply reasonable accommodation provisions at a future date. A landlord will need to conduct due diligence to keep current with applicable laws.