By David J. Byrne and Nicole D. Miller
Most community association boards know (whether because of the United States Fair Housing Act (FHA) or relevant state law) that they may have to make accommodation to a disabled resident and their “trained service animal”. However, those same boards have difficulty dealing with resident requests involving mere “emotional support animals” (ESAs).
Recent Department of Housing and Urban Development (HUD) guidance should make it easier. HUD will no longer treat ESA-related accommodation requests the same way it treats accommodation requests involving a trained service animal.
HUD has rescinded existing guidelines, narrowing the circumstances under which HUD’s Office of Fair Housing and Equal Opportunity (FHEO) will investigate and issue a reasonable cause determination with respect to animal-related reasonable accommodation claims. Specifically, “FHEO will find reasonable cause and recommend charges only for those cases involving animals trained to provide disability-related assistance.” Previously, housing providers were essentially expected to treat untrained ESAs in the same manner as trained service animals were to be treated; whether it be requests that animal-related fees be waived or that a “no dog” restrictive covenant be ignored, by way of example.
ESAs That Are Not “Individually Trained” to Provide “Disability-Related Assistance” Are Not “Service Animals” That Need to Be Accommodated
Via this change, HUD wants the definition of service animals under Titles II and III of the Americans With Disabilities Act (ADA) to guide an association’s consideration of animal-related accommodation requests. The ADA provides that a service animal “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.” The ADA further provides that the tasks performed by the animal “must be directly related” to the disability.
Using the ADA’s language, some examples of “disability-related tasks” include:
- Assisting individuals who are blind or have low vision with navigation.
- Alerting individuals who are deaf or hard of hearing to the presence of people or sounds.
- Assisting an individual during a seizure.
- Retrieving items.
- Providing physical support and assistance with balance and stability.
- Helping persons with psychiatric and neurological disabilities.
Notably, the ADA explicitly provides that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.”
Accordingly, FHEO will now “find reasonable cause for failure to provide a reasonable accommodation involving the waiver of a pet policy only where the animal has been individually trained to perform work or perform tasks directly related to the complainant’s disability.” Furthermore, FHEO” no longer expects housing providers to categorically extend accommodations for trained assistance animals to untrained ESAs.”
HUD’S New Guidance Does Not Control How Accommodations Involving ESAs are Considered by State Civil Rights Departments
Most, if not all, states have their own civil rights laws and/or enforcement departments, operating separate and apart from the federal government. While the federal government will now treat accommodation requests involving solely ESAs dismissively, community associations must be mindful of the laws and civil rights departments in their individual states. While HUD guidance regarding ESAs might be considered by and/or be relevant to the application of state laws and disabled residents, HUD guidance will not be definitive.
For instance, New Jersey’s Division on Civil Rights (DCR) has taken the position that the protections available by virtue of New Jersey’s Law Against Discrimination (LAD) might be available only when “an emotional support, therapy or assistance animal” is involved. DCR has also states that LAD protections might be available with respect to an animal that has not been “specially trained to serve a person with a disability.” As such, when it comes to New Jersey and LAD, a resident “with a disability whose medical provider prescribes an emotional support, therapy or assistance animal” might still be entitled to a “reasonable” accommodation.
New Jersey community association boards must therefore continue to tread carefully when dealing with requests for reasonable accommodations that involve, exclusively, emotional support animals, regardless of HUD’s new approach to such complaints and/or allegations. Boards should consult with counsel before making any decisions or taking any actions in response to such requests.
If you have questions or concerns regarding your community association’s obligations regarding emotional support animals, please contact Dave Byrne or Nicole Miller at Ansell.Law.