Assistance Animals and Reasonable Accommodations under the Fair Housing Act

By Jennifer L. Alexander, Esq. April 7, 2020 Posted in Community Association Law, Landlord/Tenant Law Share

The U.S. Department of Housing and Urban Development (“HUD”) recently issued a Notice as to the legality and enforcement of animal policies in multiple dwellings with respect to Assistance Animals under the Fair Housing Act (“FHA”). This Notice applies to a variety of multiple dwellings, including apartment buildings and community associations.  The Notice assists in gaining an understanding of the obligations of housing providers and regulators toward tenants and owners with disabilities with respect to the ability to keep animals in their dwellings. The Notice also replaces several pieces of guidance previously issued by HUD on housing providers’ obligations regarding service and assistance animals.

The primary purpose of this Notice is to give housing providers increased clarity as to best practices when handling a situation in which a tenant/owner requests to house an assistance animal. The Notice includes suggested practices when requesting that an individual with a disability provide support for an accommodation request, including documentation of a disability or a disability-related need, especially when the disability is not obvious and not known to the housing provider. This part of the Notice is entitled, “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation under the Fair Housing Act,”

The second purpose of this Notice is to include,  “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing.”

Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act

It is important to understand that following the guidelines contained in this Notice and in the HUD regulations prohibiting discrimination under the FHA may assist housing providers in decreasing the number of FHA complaints received by HUD nation-wide with respect to allowing assistance animals. As an initial consideration, it is important to note that there are two (2) types of assistance animals: (1) service animals, and (2) other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities (referred to as a “support animal”). These animals are not pets, and should not be considered  pets when handling a request by an individual with disabilities to house one, nor should the individual be charged pet fees or any additional fees for housing one.

1. Considerations to take when handling a request for Service Animals:

HUD sets forth several considerations and questions that housing providers should ask themselves when handling an assistance animal request by an individual with a disability. Since most housing providers enforce policies governing animals on the property, it is important for housing providers to understand that they must make exceptions or modifications to these policies when handling these requests for assistance animals.

What is a Service Animal?

Some examples of questions that housing providers should ask themselves when faced with a request for an accommodation by an individual with a disability are paired with the ADA’s definition of a “service animal.” This definition means “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability.”

These questions that HUD’s notice sets forth include asking:

(1) whether the animal is a dog;

(2) whether it is readily apparent that the dog is trained to do work or perform tasks for the benefit of an individual with a disability.

HUD provides further guidance depending on whether the animal is not a dog. This is discussed further below.

Additionally, HUD advises housing providers to limit inquiries to the following questions:

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

HUD reminds housing providers not to ask about the nature or extent of the person’s disability, or to ask for documentation.

If the answers to both of those questions are “yes,” HUD directs housing providers to grant the request; if the answer to either question is “no,” HUD provides that the animal does not qualify as a service animal under federal law, but may be a support animal or other type of assistance animal that needs to be accommodated.

1. Analysis of reasonable accommodation requests under the FHA for assistance animals other than service animals:

HUD reminds housing providers of the definition of a “reasonable accommodation” in its Notice. A “reasonable accommodation” is “a change, exception or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have equal opportunity to use and enjoy a dwelling, including public and common use spaces.”

Please note that it may be helpful for housing providers to save a list of reasonable accommodation requests, just as it may be helpful for individuals to save a list of the requests they have made, as well as any supporting documentation. Additionally, HUD’s notice guides individuals and housing providers that a person with a disability may make a reasonable accommodation request at any time, and the housing provider must consider the reasonable accommodation request even if the resident made the request after bringing the animal into the building.

Another consideration that must be made is when an animal does not meet the definition of a service animal. A question that HUD suggests housing providers to ask themselves to help assist in making a decision when the animal does not meet such a definition:

Has the individual requested a reasonable accommodation – that is, asked to get or keep an animal in connection with a physical or mental impairment or disability?

If the answer to this question is “yes,” the housing provider must then consider the criteria for assessing whether to grant the requested accommodation. If the answer is “no,” the housing provider is not required to grant a reasonable request.

• Criteria for assessing whether to grant the requested accommodation:

HUD’s Notice suggests the following questions that housing providers may ask when assessing whether to grant the requested accommodation:

1. Does the person have an observable disability or does the housing provider (or agent making the determination for the housing provider) already have information giving them the reason to believe that the person has a disability?
   1. HUD cautions that the housing provider must be mindful of disabilities that may be non-observable, i.e., disabilities that may seem invisible to others. In those instances, a housing provider may request information regarding both the disability and the disability-related need for the animal. However, housing providers are not entitled to know the individual’s diagnosis.
2. Has the person requesting the accommodation provided information that reasonably supports that the person seeking the accommodation has a disability?
   1. HUD notes that information about a disability may include: (a) a determination of disability from a federal, state, or local government agency; (b) receipt of disability benefits or services; (c) eligibility for housing assistance or a housing voucher received because of disability; and (d) information confirming disability from a healthcare professional.
   2. HUD also cautions housing providers that some websites on the Internet 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. Under the FHA, a housing provider may request reliable documentation when an individual requesting a reasonable accommodation has a disability and disability-related need for an accommodation that are not obvious. HUD’s recommendation is that such documentation from the internet is not, by itself, sufficient to establish such a need or disability. However, documentation from an individual’s licensed, legitimate health care professional that the professional may have submitted to the individual over the Internet would likely be sufficient to establish the need/disability.
3. Has the person requesting the accommodation provided information which reasonably supports that the animal does work, performs tasks, provides assistance, and/or provides therapeutic emotional support with respect to theindividual’s disability?
   1. HUD notes that reasonably supporting information is often made up of information from a licensed professional general to the condition but specific as to the individual.
   2. Additionally, a relationship or connection between the disability and the need for the assistance animal must be provided, particularly when the disability is non-observable and/or the animal provides therapeutic emotional support.
      1. For such non-observable disabilities and animals that provide therapeutic emotional support, a housing provider may ask for information that is consistent with what is identified in HUD’s Guidance on Documenting an Individual’s Need for Assistance Animals in Housing. The lack of such documentation in many cases may be reasonable grounds for denying a requested accommodation.

1. Type of Animal

HUD recommends that housing providers ask themselves:

1. Is the animal commonly kept in households? I.e. a dog, cat, small bird, rabbit, hamster, gerbil, fish, turtle, or other shall, domesticated animal traditionally kept in the home for pleasure rather than for commercial purposes.
   1. If the animal is a unique animal, which is not commonly kept in households, then the individual making the request has a substantial burden of demonstrating a disability-related therapeutic need for the specific animal or specific type of animal. This individual should submit documentation from a health care professional confirming the need for this animal under HUD guidelines and FHA regulations.
   2. HUD notes that reasonable accommodations may be necessary when the need for a unique animal involves unique circumstances. Examples include:
      1. If the animal is individually trained to do work or perform tasks that cannot be performed by a dog.
      2. Information from a healthcare professional confirms that: allergies prevent the person from using a dog; or without the animal, the symptoms or effects of the person’s disability will be significantly increased; or the individual seeks to keep the animal outdoors at a house with a fenced yard where the animal can be appropriately maintained.

1. General Considerations

HUD reminds housing providers that the FHA does not require a dwelling to be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

HUD also states that a reasonable accommodation may include a reasonable accommodation to a land use and zoning law, Homeowners Association rule, or co-op rule. A housing provider is also prohibited from charging a fee for processing a reasonable accommodation request.

Pet rules also do not apply to service/support animals, and housing providers may not charge a fee or surcharge for an assistance animal, except for damage an assistance animal causes, if it Is the provider’s usual practice to charge for damage caused by tenants.

Before denying a reasonable accommodation request due to lack of information confirming a disability or disability-related need for an animal, the housing provider is encouraged to engage in a good-faith dialogue with the requestor, called the “interactive process.”

Guidance on Documenting an Individual’s Need for Assistance Animals

HUD provides some guidance as well as to what documentation should be provided in making a determination for a reasonable accommodation request, to be considered by an individual making request and that individual’s health care provider. Some of this information includes:

1. The patient’s name
2. Whether the health care professional has a professional relationship with that patient/client involving the provision of health care or disability-related services;
3. The type of animal for which the reasonable accommodation is sought;
4. Disability related information, including:
   1. Whether the patient has a physical or mental impairment
   2. Whether the impairments substantially limit at least one major life activity or major bodily functions;
5. If the animal is unique:
   1. The date of the last consult with the patient;
   2. Any unique circumstances justifying the need for the animal;

HUD also provides an appendix listing examples of work, tasks, assistance, and emotional support, as well as examples of major life activities/major bodily functions, physical/mental impairments, and examples of a patient’s need for a unique animal or unique circumstances. For more information, please visit: https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf

The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances.  Each legal matter is unique, and prior results do not guarantee a similar outcome.

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