Seven Dos & Don’ts for Handling Requests for Assistance Animals

Disability discrimination claims, which account for more than half of all fair housing complaints, are often based on disputes over requests by applicants or residents with disabilities to have assistance animals.

The reasonable accommodation provisions of the federal Fair Housing Act (FHA), which bans housing discrimination against individuals with disabilities, come into play whenever an individual with a disability wants to use an assistance animal in sites that either prohibit or impose restrictions or conditions on pets at the site.

There’s a lot of confusion over assistance animals, which can go by many names—service animals, therapy animals, companion animals, emotional support animals—and there are different sets of rules on when, where, and what types of animals may be used by individuals with disabilities in various settings.

Broadly speaking, federal fair housing law broadly defines “disability” to mean physical or mental impairments that substantially limit one or more major life activities. That covers a lot of people since it applies to a wide variety of physical and psychological conditions—many of which aren’t obvious or apparent—as long as the condition is serious enough to substantially limit major life activities, such as seeing, hearing, walking, or caring for oneself.

In addition, assistance animals are not pets under fair housing law [HUD Handbook 4350.3, par. 2-44(A)]. They’re animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability, according to HUD.

The confusing terminology and conflicting rules often lead to fair housing complaints if, for example, sites apply the wrong rules to deny requests for assistance animals needed by individuals with disabilities. And the confusion can cut both ways; for example, residents may mistakenly believe that their impairments qualify as a disability that entitles them to keep their pet as an assistance animal.

To cut through the confusion, we’ll give you seven rules to follow when applicants or residents ask for an exception to your pet policy so that they may keep an assistance animal at your site.

RULE #1:

DO Have a Policy on Pets

DON’T Use It to Keep Out Assistance Animals

Fair housing law doesn’t prevent sites from adopting and enforcing pet policies—as long as they don’t use their policies to keep out assistance animals. Some sites ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as extra fees, security deposits, or additional rent charges. Whatever your policy or rules on pets, you must make an exception to allow an assistance animal when needed by an individual with a disability to fully use and enjoy the site.

Remember, assistance animals are not pets under fair housing law, so the pet policy doesn’t apply. For example, HUD says that the site may require applicants or residents to pay a pet deposit, but it can’t require an applicant or resident to pay a deposit for an assistance animal [HUD Handbook 4350.3, par. 6-24 (C)].

Nevertheless, the reasonable accommodation provisions protect only individuals with disabilities—they don’t require sites to make exceptions to no-pet policies for residents who don’t have a qualifying disability. Problems often arise because residents don’t understand what the law actually says or means—if, for example, a resident has an impairment and considers herself disabled, but she doesn’t qualify as an individual with a disability under fair housing law.

RULE #2:

DO Treat Requests for Assistance Animals as Reasonable Accommodation Requests

DON’T Make Snap Decisions About Assistance Animals

Anytime you get a request for an assistance animal, treat it as a reasonable accommodation request for an exception to your pet policies. The reasonable accommodation rules kick in anytime anyone says he needs or wants something—including an assistance animal—because of a disability. The law doesn’t require that a request be made at a particular time or in a particular manner. The person doesn’t have to mention fair housing law or use the words “reasonable accommodation.”

When you receive a request for an assistance animal, HUD says there are two relevant questions:

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 with services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability?

If the answer to either or both questions is “no,” then HUD says that fair housing law doesn’t require you to make an exception to your pet policy and the reasonable accommodation request may be denied.

But if the answer to both questions is “yes,” then fair housing law requires you to modify or make an exception to your pet policies to permit an individual with a disability to live with and use an assistance animal at the site, unless doing so would impose an undue financial or administrative burden or would fundamentally alter the nature of the site’s services.

The request may also be denied if the animal is a direct threat to your property or the health and safety of others. But HUD warns that you can’t make that decision based on speculation about the animal’s size or breed; you have to look into the specifics of the particular animal involved. It can get complicated, so don’t make snap decisions about whether to allow an animal on that basis without reviewing all the facts.

RULE #3:

DO Get Information When Needed to Evaluate Request

DON’T Deny Request When Uncertain About Disability-Related Need for Assistance Animal

Don’t deny a request just because you’re uncertain about whether the person seeking the accommodation has a disability or a disability-related need for an assistance animal. Though fair housing law generally forbids housing providers from making disability-related inquiries, there’s an exception for reasonable accommodation requests when either the disability—or the disability-related need for the requested accommodation—isn’t obvious or apparent.

Just remember: You can’t ask questions about an applicant’s disability or disability-related need for an assistance animal if both are known or readily apparent. The classic example is guide dogs used by blind or visually impaired people. Since both the disability and the need for the animal are readily apparent, you can’t ask for documentation about the disability or disability-related need for the dog.

On the other hand, you may request information from a resident with a known or obvious disability, but only if his need for the assistance animal isn’t readily apparent. As an example, federal guidelines point to a request by an applicant who uses a wheelchair to keep a dog as an assistance animal. The applicant’s disability is readily apparent, but the need for the assistance animal isn’t obvious. So you can ask the applicant to provide information about the disability-related need for the dog—as long as you don’t go overboard by asking for too much information.

RULE #4:

DO Ask for Verification If Resident Doesn’t Appear to Be Disabled

DON’T Reject Request Because Resident Doesn’t Have Obvious Disability

Be careful about how you handle requests for assistance animals from applicants or residents who don’t appear to be disabled. Fair housing law defines “disability” to include a variety of physical and emotional impairments that may not be obvious or apparent, so you can’t reject a request based solely on outward appearances.

If the resident’s disability is not readily observable, you may ask for reliable disability-related information that’s necessary to verify that the resident has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal.

But be careful: You can’t ask the resident for information about what his disability is or what the animal does to assist him—only for confirmation that there is a disability and that the animal is needed because of that disability.

In general, verification may come from a doctor or a medical professional, peer support group, or reliable third party in a position to know about the individual’s disability—even the resident himself, under certain circumstances. But you can’t ask applicants or residents for access to medical records or medical providers—or for detailed or extensive documentation about their physical or mental impairments.

For example, HUD says that sites may ask applicants who want a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support, according to HUD.

RULE #5:

DO Permit Emotional Support Animals

DON’T Make Exceptions for Service Dogs, But Not Other Assistance Animals

Don’t make the mistake of granting reasonable accommodation requests to allow service animals but not other types of assistance animals, particularly emotional support animals.

You might be confusing the FHA rules with the rules under the ADA—which limits service animals to individually trained dogs and specifically excludes emotional support animals. The ADA rules apply in public places, like hotels and restaurants, but they don’t trump the broader rules under the FHA, which permits all types of assistance animals in housing. According to HUD, the FHA recognizes that assistance animals may include a wide variety of species—not just dogs—that provide various forms of assistance—including emotional support—with or without specialized training.

RULE #6:

DO Promptly Consider Requests for Assistance Animals

DON’T Put Up Roadblocks or Drag Your Feet on Reasonable Accommodation Requests

Ensure prompt consideration of requests for reasonable accommodations, including requests by applicants or residents for an assistance animal. The law requires an individualized assessment of reasonable accommodation requests, but don’t make the process so difficult that it unreasonably delays a decision on a request for an assistance animal. An undue delay in responding to a reasonable accommodation request may be deemed a denial, triggering a fair housing claim.

Example: In June 2015, the Justice Department announced that the owner of the largest affordable housing cooperative in New York agreed to pay a $50,000 civil penalty and dedicate as much as $600,000 in compensation to resolve allegations that it failed to provide reasonable accommodations to people who required assistance animals. Specifically, the government accused the site of maintaining and using an overly burdensome and intrusive policy governing waivers of its no-pets rule, which deterred and prevented people with disabilities from obtaining reasonable accommodations in violation of fair housing law.

In its complaint, the government alleged that before changing its policy in 2011, the site’s application for a reasonable accommodation to its no-pet rule consisted of five forms (including one to be completed only in blue ink and another to be typewritten), prohibited certain breeds of dogs, required animals to be neutered or spayed, imposed annual renewal requirements, and required applicants to provide their medical records. Although the site twice amended its policy, the government claimed that it left in place many provisions from the first policy, including a ban on certain breeds of animals, which could be waived based only on an applicant’s “medical need” for that particular breed [U.S. v. Riverbay, June 2015].

RULE #7:

DO Watch for Potential Retaliation Claims

DON’T Retaliate Against Anyone for Making Disability-Related Requests

Watch out for potential retaliation claims when handling requests to keep assistance animals by residents with disabilities. It’s unlawful to retaliate against applicants, residents, or any others because they’ve exercised their fair housing rights by requesting a reasonable accommodation or filing a fair housing complaint against you. Under fair housing law, discrimination and retaliation are separate violations, so you could be liable for retaliation if you take adverse action against a resident solely because he requested a reasonable accommodation for an assistance animal—even if the discrimination claim is ultimately dismissed.

Unless you’re careful, things can quickly get out of hand, if, for example, you discover that a resident has been keeping a dog in her unit despite your site’s no-pet policy. You tell her that she must remove the dog, but she insists she’s disabled and that it’s an assistance animal, so you have to let her keep it.

At that point, it’s dangerous to take further action against her for violating your rules, particularly if she takes it to the next level by filing a fair housing complaint against you. You could face liability for disability discrimination for refusing the request if she’s legally entitled to keep the animal. Even if she’s not, she could charge you with retaliation for taking action against her for pursuing the request.

Editor’s Note: To learn more about fair housing rules governing assistance animals, you can download our recent webinar, “Assistance Animals: What Housing Providers Need to Know.” This one-hour program, presented by California attorney Theresa L. Kitay, offers much-needed guidance to multifamily housing owners and managers on complying with their obligations to accommodate people with disabilities who require assistance animals. To purchase the webinar, click here.