Ask 6 Questions When Considering Accommodation Requests for Assistance Animals

Under the Fair Housing Act (FHA), housing residents or applicants can request reasonable accommodations, including the ability to have an assistance animal in their homes. The FHA requires owners “to make reasonable accommodations that a person with a disability may need to have equal opportunity to enjoy and use a dwelling, including a reasonable accommodation to pet or no animal policies so that individuals with disabilities are permitted to use assistance animals in housing, including public and common use areas.”

HUD recently posted a new online tool that walks owners and residents through the handling of a reasonable accommodation request for an assistance animal. The tool is based on information in Notice FHEO 2020-01, “Assessing a Person’s Request to Have an Assistance Animal as a Reasonable Accommodation Under the Fair Housing Act,” which provides a set of best practices for complying with the Fair Housing Act when assessing requests for reasonable accommodations for assistance animals. The tool can be found at https://sites.hudexchange.info/housing-request-for-assistance-animals-interactive-tool/.

We’ll use this tool as a basis to take a closer look at the 2020 HUD guidance on assistance animals as a reasonable accommodation and consider six questions when deciding whether to exempt a resident’s animal from your no-pets policy as a disability accommodation.

Question 1: Has an Accommodation Been Requested?

You don’t have to make accommodations unless they’re specifically requested. However, you can’t make a big deal over the timing and formalities of a request. There’s no rule saying that requests must be in writing. Nor do requestors have to use the words “reasonable accommodation,” “fair housing,” “disability,” “assistance animal,” or any other magic language.

They need only make it clear that they’re requesting an accommodation.

In addition, an applicant or resident requesting a reasonable accommodation can make the request in writing or orally. And the owner or manager can’t require that a request be made in a specific manner or on a specific form.

Others may make a request for reasonable accommodations on behalf of the applicant or resident. Those others might be someone residing in the unit with the person with a disability, a legal guardian, or an authorized representative.

HUD says that, as a best practice, you should make a determination about the request for a reasonable accommodation to have an assistance animal promptly, generally within 10 days of receiving documentation. 

In other guidance, HUD has recommended that owners create forms and procedures that people can use to submit written requests for any types of accommodations. This can facilitate and speed up the processing of requests and “prevent misunderstandings regarding what’s being requested, or whether the request was made.” However, the guidelines add, owners “must give appropriate consideration to reasonable accommodation requests even if the requestor makes the request orally or does not use the [owner’s] preferred forms or procedures for making such requests."

Question 2: Does the Tenant Have a Disability?

Residents are entitled to assistance animal reasonable accommodations only if they have a disability. The FHA defines “disability” broadly as a physical or mental impairment that substantially limits one or more “major life activities.” To qualify for a disability accommodation, a person must:

• Actually have such a disability;
• Be perceived as having such a disability even if that perception is wrong, such as where an owner rejects an applicant based on the mistaken belief that he has HIV; or
• Have a record of such an impairment, such as a recovered drug addict.

“Major life activities” are those of central importance to daily life, such as walking, seeing, hearing, breathing, performing manual tasks, caring for one’s self, learning, and speaking.

If the disability is observable, or if the owner otherwise has information that the applicant or tenant requesting the accommodation has a disability, the owner should not inquire further about the existence of a disability. Observable impairments generally tend to be obvious.

Otherwise, however, owners get in trouble with the FHA when denying accommodation requests based on unobservable and unverified disabilities. If the disability is not observable, or the requestor hasn’t already provided information that reasonably supports that the person seeking the accommodation has a disability, or the housing provider doesn’t otherwise have reason to believe the requestor has a disability, the housing provider may request that such information be provided, if needed to respond to the request for a reasonable accommodation. 

Question 3: Did Requestor Provide Appropriate Documentation to Support Request?

The 2020 HUD guidance gives owners leeway to request information about both the disability and disability-related need for an animal when tenants request accommodations for assistance animals. You’re allowed to request verification of the disability only when that disability isn’t “observable.”

If you don’t have information that reasonably supports how the animal provides disability-related assistance, you may request such information from the person seeking the reasonable accommodation. You aren’t required to grant the accommodation unless this information is provided, but you may not deny the accommodation on the grounds that the person requesting the accommodation hasn’t provided the information until the requestor has been given a reasonable opportunity to do so.

Examples of the kinds of assistance that animals may provide to a person with a disability include, but are not limited to:

• Assisting the person in dealing with disability-related stress or pain;
• Assisting a person with mental illness to leave the isolation of home or to interact with others;
• Enabling a person to deal with the symptoms or effects of major depression by providing a reason to live;
• Helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors;
• Reminding a person with mental illness to take prescribed medication;
• Taking an action to calm a person with post-traumatic stress disorder (PTSD) during an anxiety attack;
• Providing emotional support that alleviates at least one identified symptom or effect of a physical or mental impairment;
• Assisting a person with low hearing by alerting them to a visitor at the door;
• Alerting a person to an imminent seizure; or
• Assisting a person with a mobility impairment by fetching small items.

If the need for an assistance animal isn’t apparent, you may request supporting documentation that demonstrates the disability-related need for the assistance animal. If supporting information is needed and requested by the owner, but not provided by the applicant or tenant, then an owner isn’t required to grant the accommodation.

What is appropriate documentation? Documentation of disability may be obtained from a federal, state, or local government agency. This includes benefits or services for Social Security Disability Income (SSDI), Medicare or Supplemental Security Income (SSI) for a person under age 65, veterans’ disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency. Eligibility for housing assistance or a voucher based on disability is also considered to be a determination of disability. A determination of disability may also be obtained from a healthcare professional, such as a physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse. This list of healthcare professionals is not exhaustive.

As a best practice, documentation—typically a short letter—should include:

• Patient name;
• Whether the healthcare professional has a professional relationship with that patient/client involving the provision of healthcare or disability-related services;
• The type of animal(s) for which the reasonable accommodation is sought;
• Whether the patient has a physical or mental impairment;
• Whether the patient’s impairment(s) substantially limit at least one major life activity or major bodily function; and
• Whether the patient needs the animal(s) to do work, provide assistance, perform at least one task that benefits the patient, or provide therapeutic emotional support related specifically to the disability. For example, a dog that’s trained to detect the onset of a seizure for a person who has seizure disorder, and helps that person remain safe during the seizure is an example of an animal that does work to benefit that person specifically related to his or her disability. Alternatively, a cat, while not trained to perform a specific task, may provide assistance to a person with anxiety by helping the person deal with the symptoms of or alleviate disability-related stress—this is an example of an animal that provides therapeutic emotional support specifically related to an individual’s disability.

Internet and remote documentation. HUD notes that there are websites that sell certificates, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee. HUD has found that generally documents generated from such websites are insufficient because they are not written by a provider with personal knowledge about the person with a disability’s need for the animal.

However, many legitimate, licensed healthcare professionals deliver remote services and have personal knowledge about the individual and their need for the requested reasonable accommodation. You may not reject this type of documentation simply because the services were delivered remotely and not in person. A note from a healthcare professional with personal knowledge of the person requesting the reasonable accommodation that confirms a person’s disability and need for an assistance animal is considered reliable.

Question 4: Is the Tenant’s Animal an Assistance Animal?

The next thing you need to ask is whether the tenant’s animal qualifies for a reasonable accommodation. Even if a tenant has a disability, you don’t have to make a reasonable accommodation exemption to your no-pets policy unless the animal is an “assistance animal.” Such animals are not pets, HUD clarifies. They include trained or untrained dogs or other common domestic household animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities. There are two kinds of “assistance animals”:

1. Service animals. Service animals are dogs trained to do work or perform tasks for the benefit of an individual with a disability, such as guiding a person with a visual impairment or pulling a wheelchair. That’s the same definition that the ADA uses. So, if a dog is a service animal under the ADA, it’s also a service animal for which an accommodation may be required under the FHA.

According to the HUD guidance, there are two questions owners can ask to determine if a dog has the training required to be a service animal, but only if this information isn’t readily apparent, such as where the animal is obviously a seeing-eye dog:

• Is the animal required because of a disability?
• What work or task has the animal been trained to perform?

2. Other assistance animals. An assistance animal doesn’t have to be a dog; nor does it have to have any specialized training in assisting a person with disabilities. All that’s required is that the animal serve a tenant’s disability-related need. That includes emotional support animals, such as a stray cat that a tenant adopts off the street to help deal with emotional anxieties.

Question 5: Is the Requested Assistance Animal Accommodation Reasonable?

Let’s say that so far you’ve determined that:

• An appropriate accommodation request has been made;
• The tenant has a disability;
• The animal is an assistance animal; and
• The assistance animal serves the tenant’s disability-related need.

Do you have to provide the requested accommodation?

Not necessarily. There’s still one more question to answer—namely, whether the actual accommodation requested in this particular case is reasonable. We know from previous guidance that HUD considers an accommodation reasonable if it:

1. Doesn’t cause owners to incur an undue financial and administrative burden;
2. Doesn’t cause a basic or fundamental change in the nature of the housing program available;
3. Won’t cause harm or damage to others; and
4. Is technologically possible.

For purposes of assistance animals, prong three is the crucial criterion. The first step in applying this criterion is to consider the type of assistance animal the tenant wants to keep in the apartment. According to the 2020 HUD guidance, the owner should grant the accommodation if “the animal is a dog, cat, small bird, rabbit, hamster, gerbil, other rodent, fish, turtle, or other small, domesticated animal that is traditionally kept in the home for pleasure rather than for commercial purposes.” For purposes of this analysis, the guidance adds that reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals don’t count as common household animals.

Theoretically, owners might also have to make reasonable accommodations for assistance animals that HUD describes as “unique.” However, the tenant has the “substantial burden of demonstrating a disability-related therapeutic need for” the unique animal. The guidance cites the example of a capuchin monkey specially trained to perform tasks for a person with paralysis caused by a spinal cord injury.

At the same time, tenants are responsible for keeping their assistance animals in their apartment or other available facilities. Accommodations requiring landlords to create special outside areas, cages, and other facilities just for the assistance animal would likely be deemed unreasonable as imposing an undue financial or administrative burden. As a result, the HUD “unique” animal example might work for a monkey but not a full-grown elephant, camel, or tiger.

In addition, while assistance animals aren’t pets, tenants with disabilities are still responsible for caring for them. While you might have to lend the tenant reasonable assistance, you don’t have to offer elaborate feeding, walking, or other services to the extent that it would require you to fundamentally alter the nature of your business. That business is to provide housing, rather than pet care services.

Tenants must also ensure that their assistance animals comply with reasonable community rules and don’t create untoward damage, danger, or nuisances to other tenants. If they do, you may have cause to evict. 

Question 6: Are There Any Alternatives to Accommodations that Are Unreasonable?

The accommodations process doesn’t end when you conclude that a requested accommodation for an assistance animal is unreasonable. Before rejecting the request, you must dig deeper and, as the 2020 guidance describes it, “engage in the interactive process to discuss whether an alternative accommodation may be effective in meeting the individual’s disability-related needs.”

Whether an alternative is reasonable is a judgment call that depends on the circumstances. For example, a mobility-impaired tenant demands that you hire a special assistant to take his dog to the vet and walk him three times a day. While bringing on a dedicated staffer might be unreasonable to the extent it requires a fundamental alteration of your business, it might be reasonable to make existing on-site personnel available for pet walking services.