How to Handle Reasonable Accommodation Requests for Assistance Animals
According to HUD’s Office of Fair Housing and Equal Opportunity (FHEO), disability-related complaints, including those that involve assistance animals, are the most common discrimination complaint they receive. To help explain reasonable accommodation obligations in housing and HUD-funded programs, on April 25, the FHEO issued Notice 2013-01. The notice explains reasonable accommodation obligations regarding assistance animals for people with disabilities under three laws: the Fair Housing Act (FHA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA).
Under the FHA and Section 504, a disabled person must be allowed to use an assistance animal even in housing that otherwise prohibits pets. The notice stresses that assistance animals are not pets. Assistance may include animals that provide emotional support for people with disabilities. The guidance also describes the Department of Justice’s (DOJ) revised definition of “service animal” under the ADA, as well as housing providers’ obligations when multiple nondiscrimination laws apply. The DOJ’s definition of “assistance animal” under the ADA is limited to dogs that are individually trained, and it expressly prohibits use for emotional support. Under the ADA, an assistance animal may not be denied access to an ADA-covered facility, unless one of three exceptions apply to the specific dog.
To help you sort requests by residents for assistance animals as a reasonable accommodation for an individual with a disability, we’ll explain the federal fair housing requirements and suggest five rules that you can follow to comply with them.
Reasonable Accommodation Considerations
Some sites enforce a no-pet policy, while others restrict the number, size, weight, breed, or species of animals, or impose conditions, such as pet fees or deposits. Whatever your policy, you must consider a request for an exception to allow an individual with a disability to have an assistance animal as a reasonable accommodation.
To qualify for the accommodation, two questions must be answered in the affirmative:
1. Does the person seeking to use and live with the animal have a disability—that is, 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? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of the person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of the person’s existing disability?
If the answer to question (1) or (2) is “no,” then the FHA and Section 504 do not require a modification to a housing provider’s “no-pets” policy, and the reasonable accommodation request may be denied. However, if the answers to questions (1) and (2) are “yes,” the FHA and Section 504 require the site owner to modify or provide an exception to a “no-pets” rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.
For example, in a 2006 memo, HUD officials specifically addressed insurance policy restrictions as a defense to refusing to grant reasonable accommodation requests involving a breed of dog that the owner’s insurance carrier considers dangerous. If the site’s insurer would cancel or substantially increase the costs of the insurance policy, or adversely change the policy terms because of the presence of a certain breed of dog or a certain animal, then HUD will find that this imposes an undue financial and administrative burden on the housing provider, according to the memo. Nevertheless, the memo warned that investigators will check the owner’s claim by verifying with the owner’s carrier “and consider whether comparable insurance, without the restriction, is available on the market.”
Aside from that, sites may deny a request for an assistance animal if it would pose a direct threat to the health and safety of others—or would cause substantial physical damage to the property of others—which can’t be reduced or eliminated by reasonable accommodations.
Breed, size, and weight limitations may not be applied to an assistance animal. A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct—not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.
The determination of whether an assistance animal poses a direct threat must rely on an individualized assessment based on objective evidence about the specific animal in question, such as the animal’s current conduct or a recent history of overt acts. The assessment must consider:
- The nature, duration, and severity of the risk of injury;
- The probability that the potential injury will actually occur; and
- Whether reasonable modifications of rules, policies, practices, procedures, or services will reduce the risk.
In evaluating a recent history of overt acts, HUD said that the housing provider must take into account whether the assistance animal’s owner has taken any action that has reduced or eliminated the risk. Examples would include specific training, medication, or equipment for the animal.
5 RULES FOR HANDLING REQUESTS FOR ASSISTANCE ANIMALS
Rule #1: Think FHA—not ADA—When It Comes to Animals
Don’t get confused by differences in the ADA and FHA rules regarding the use of animals by individuals with disabilities. Although the laws have much in common, the FHA—not the ADA—primarily governs the use of assistance animals at multifamily housing sites.
In large part, the rules are different because they apply to different places: the ADA to a wide variety of public establishments, and the FHA to private areas in and around people’s homes. With only one exception (for miniature horses), the ADA rules narrowly define “service animals” as dogs that have been individually trained to do work or perform tasks for a person with a disability. The regulations recognize psychiatric service dogs, which perform tasks such as reminding individuals to take medication, but they specifically exclude animals that provide only emotional support. Your leasing office, as well as the offices of any social services agencies that operate on your site for the benefit of both residents and nonresidents, would be considered public establishments under the ADA. So in those spaces, you must allow service animals as they’re defined by the ADA, but may restrict the presence of all other animals.
The FHA takes a different approach on the use of animals by individuals with disabilities. HUD officials emphasize the ADA rules limiting the use of service animals don’t affect reasonable accommodation requests under the FHA (or Section 504 of the Rehabilitation Act of 1974, which also applies to federally assisted sites). Under the FHA, disabled applicants and residents may request a reasonable accommodation for “assistance animals,” which includes species other than dogs, with or without training, and animals that provide emotional support.
Rule #2: Don’t Take Narrow View of Assistance Animals
Don’t underestimate the types of animals that may qualify as assistance animals under the FHA. Many would also qualify as service animals under the ADA—dogs specially trained to provide tasks or services for individuals with disabilities. There are hearing dogs, which alert people who are deaf and hard-of-hearing to various sounds, and dogs trained to assist individuals with mobility impairments with tasks, such as pulling wheelchairs, retrieving objects, and summoning help. Diabetic alert dogs are trained to identify a scent when their owner’s blood sugar drops and perhaps retrieve a snack if the owner’s blood sugar gets too low. Seizure alert dogs have been trained to alert others when an individual has a seizure or to lie down next to the individual to prevent injuries; in some cases, they can learn to detect a seizure before it happens.
In addition to these “working” animals, the FHA allows assistance animals other than dogs that provide aid or emotional support to individuals with disabilities. Recognizing that assistance animals often provide aid that doesn’t require training to provide necessary support to persons with emotional or psychiatric disabilities, HUD says there’s no formal training or certification requirement.
Though most requests for assistance animals involve dogs, other assistance animals that may qualify include cats, birds, reptiles, and many other types of animals. But that doesn’t mean you have to allow any species as assistance animals. There may be state or local laws banning farm animals or wild or exotic species from residential or rental housing.
Rule #3: Don’t Treat Assistance Animals as Pets
Sites with no-pet policies are most at risk for fair housing complaints if they enforce the policy to refuse requests for assistance animals. In an example from the federal guidance on reasonable accommodations, a deaf resident asks for an exception to a site’s no-pet policy so he can keep a dog in his unit. The resident explains that the dog is an assistance animal that will alert him to several sounds, including knocks at the door, the sounding of the smoke detector, the telephone ringing, and cars coming into the driveway. The guidelines state that the housing provider must make an exception to its “no-pets” policy to accommodate this resident.
It’s more complicated at sites that allow pets, but have restrictions based on size or weight, number, species, or breed of the animals. Don’t make the mistake of flatly refusing to consider requests for exceptions to those policies. Instead, consult your attorney and follow your standard policy on reasonable accommodations to thoroughly evaluate the request based on the particular circumstances.
If possible, get the request in writing. Follow up to determine whether the individual has a disability and a disability-related need for the animal. If so, then consider whether the request imposes an undue financial and administrative burden on your site. If, for example, the request involves a restricted breed, check with your insurance agent to find out if there are any insurance restrictions. If so, then you may have good reason to reject the request as unreasonable, particularly if comparable coverage for the restricted breed isn’t readily available.
Also check whether state or local laws ban specific breeds or impose strict liability on owners for dog bites caused by tenants’ restricted breeds. If so, you’d probably have a valid reason for rejecting the request as unreasonable.
Otherwise, get legal advice before rejecting the request based solely on the animal’s breed. The issue is whether the animal poses a direct health and safety risk—and HUD has suggested that sites should perform an individualized assessment of the particular animal involved based on its past behavior or history, as opposed to on fear or speculation about the harm or damage caused by other animals. Even then, you may have to consider alternatives proposed by the individual to reduce the threat, such as training or restraining the animal.
Rule #4: Understand When and How to Ask for Documentation
When faced with a request for an assistance animal, make sure you don’t step over the line when it comes to asking for disability-related information. It’s a particular problem when the request comes only after the management discovers a resident has violated site rules for some time by keeping the animal. You may suspect that the resident isn’t really disabled or that the animal is merely a household pet. But the law allows requests for reasonable accommodations at any time during the tenancy, so you must follow the rules on when and how to ask for disability-related information from the resident.
HUD recognizes that housing providers are entitled to obtain information that’s necessary to evaluate if a requested reasonable accommodation may be necessary because of a disability. But don’t make the mistake of thinking that you can ask for documentation for any request for an assistance animal. If both the nature of the resident’s disability and his disability-related need for an assistance animal are both known or apparent, then you can’t ask for additional information about his disability or disability-related need for the animal.
Otherwise, you can get more information—but only enough so that you can properly evaluate the accommodation request. For instance, you can’t ask about an individual’s disability if it’s known or obvious, but you can request additional information if it’s unclear why he needs an assistance animal. In another example from the federal guidelines, an applicant who uses a wheelchair says that he wishes to keep an assistance dog in his unit even though the site has a “no-pets” policy. The applicant’s disability is readily apparent but the need for an assistance animal is not, so the site may ask the applicant to provide information about the disability-related need for the dog.
Oftentimes, an applicant or resident will produce information from his doctor. You can’t refuse to consider documentation from sources, including medical professionals, peer support groups, and non-medical service agencies. Even a reliable third party who’s in a position to know about the individual’s disability may also provide verification of a disability, according to federal guidelines. In fact, HUD says that the individual himself may provide the required information, for example, with proof that he receives Social Security disability benefits or “a credible statement by the individual.” Despite that broad language, a statement from the individual may not be enough to justify a request for an emotional support animal.
Rule #5: Waive Pet Deposits and Fees for Assistance Animals
The FHA bans sites from imposing conditions on the tenancy because the resident requires a reasonable accommodation. Among other things, you may not require the payment of a fee or a security deposit as a condition of allowing the resident to keep the assistance animal as a reasonable accommodation, according to HUD guidelines. In addition to waiving pet deposits or additional monthly rental charges, you may have to waive liability insurance requirements applicable to pet owners.
Despite these restrictions, sites aren’t without recourse if a resident’s assistance animal causes damage to the unit or common areas. The federal guidelines state that the housing provider may charge the resident for the cost of repairing damages (or deduct it from the standard security deposit imposed on all residents), if it’s the site’s practice to assess residents for any damage they cause to the premises.
Furthermore, individuals with disabilities who use assistance animals are also responsible for the animal’s care and maintenance, according to HUD. In its comments on pet ownership at housing for elderly and disabled individuals, HUD said that sites may establish reasonable house rules requiring a person with a disability to pick up after and dispose of his assistance animal’s waste.