On April 25th, 2013, the US Department of Housing and Urban Development (HUD) issued a memo explaining the obligations of housing providers who are subject to the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA) or the Rehabilitation Act of 1973 (Section 504) with respect to service and assistance animals for individuals with disabilities.
REASONABLE ACCOMMODATIONS FOR ASSISTANCE ANIMALS UNDER FHA AND SECTION 504
It is illegal to discriminate against individuals with disabilities regardless of whether the housing provider receives federal assistance. Various laws are in place to protect individuals who require assistance animals and ensure housing providers are meeting their obligations to provide those individuals with reasonable accommodations in housing that forbids or restricts residents from having certain pets.
It is important to note the difference between service animal and assistance animal. The term “service animal” has been strictly defined to only apply to dogs and excludes emotional support animals, however assistance animals include no such limitation and housing providers must still consider request for accommodations for assistance animals where pets are prohibited.
Each request for reasonable accommodations must be evaluated and weighed carefully on an individual basis and the housing provider must consider whether the individual has a disability and the assistance animal is related to that disability. Housing providers may ask for individuals with disabilities that are NOT readily apparent for documentation of a disability and the need for an assistance animal (i.e. an individual with PTSD who has an assistance animal for comfort purposes may not appear disabled but could supply documentation from a psychiatrist, therapist, veteran’s support group, etc. of that disability and the need for a support animal in order to function). But a housing provider may NOT ask for documentation of a readily apparent disability.
To be clear neither assistance animals nor service animals are considered “pets”. Therefore, once the determination has been made that an animal is an assistance animal, it can no longer be prohibited under a housing providers’ “no pets” policy and cannot be made to pay any fee for the animal. There are some limitations to this rule that would also be considered on a case by case basis.
SERVICES ANIMALS AND THE AMERICANS WITH DISABILITY ACT
In addition to the obligations listed under the FHA and Section 504, housing providers may also have additional obligations under the ADA. The ADA defines 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, including a physical, sensory, psychiatric, intellectual, or other mental disability” with the specific exclusion of any animal used specifically for “emotional support, well-being, comfort, or companionship” because they do not “constitute work or tasks”.
The new ADA laws apply to state and local government programs, service activities, and facilities/public accommodations (i.e. leasing offices, social services centers, and universities). Because the requirements for service animals are different than the requirements for assistance animals under the FHA and Section 504, the process is evaluated differently. If an animal is found to be a service dog (i.e. a seeing eye dog who helps guide an individual with limited sight) then the evaluation explained above does not apply. An entity subject to the ADA must perform a different test: (1) is this a service animal that is required because of a disability and (2) what work or tasks has the animal been trained to do? The entity shall NOT ask for documentation, and those are the only two inquiries they may make. Further if a disability is readily apparent and the work the dork is performing is also obvious, the entity may NOT make those inquiries. Once it is determined that it is a service animal, it MUST be allowed into the facility (subject to very limited exceptions).
When entities are subject to more than one law (or all three), they must comply with each law. Simply because they allow a service animal in does not mean they are in compliance with the FHA or Section 504 which allows for reasonable accommodations for assistance animals. In short, entities may not use compliance with one law to limit their compliance with another. Entities SHOULD apply the service animal test first so as not to be overly intrusive into an individual’s privacy rights – they may not be allowed to ask questions regarding the disability under certain laws and should always error on the side of protecting an individual’s right to not disclose medical information.
To read the entire HUD Memo click here.