A Note From The Legal Helpdesk: Tips on Service and Companion Animals
August 22, 2017
What’s the Fuss?
The proliferation of assistance animal certificates and the lack of guidance by the federal government has many property owners and property managers scrambling. While NAR works on federal guidance, Alabama REALTORS® has a few tips for you.
The Americans with Disabilities Act (ADA), Fair Housing Act (FHA) and the Rehabilitation Act (Rehab Act) all apply to service animals or assistance animals. But the entrance of a service animal in an ADA-covered facility must be handled differently than a reasonable accommodation request for an assistance animal under the FHA/Rehab Act. See below for information to help you handle these requests.
The ADA, FHA and Rehab Act cover different properties or entities. In general, the ADA covers government housing programs and places of public accommodations; the Rehab Act covers housing providers receiving federal assistance from HUD; and the FHA covers all housing with several exceptions that have limited applicability to property managers. The U.S. Department of Justice oversees the ADA, and HUD oversees the FHA and the Rehab Act.
The three Acts follow two distinct applications – one for the ADA covering service animals, and one for the FHA and Rehab Act covering assistance animals. Some facilities, like rental offices, residential homes, assisted living facilities and public housing agencies, are covered under both applications.
Service Dog vs. Assistance Animal
ADA: The ADA covers service animals, specifically defined as dogs, any breed, that receive individual training to do work or perform tasks for an individual with a physical, sensory, psychiatric, intellectual, or other mental disability. The ADA does not cover assistance, emotional support or companion animals. So, for main offices or other areas of public accommodation, the ADA simply requires covered facilities to allow entry to any animal that meets the definition of “service animal” above, with a few exceptions discussed below.
FHA/Rehab Act: The FHA and Rehab Act apply to assistance animals, sometimes called companion animals, emotional support animals or comfort animals. Assistance animals can be any animal and do not need to be individually trained or certified. For housing or other entities covered by the FHA or Rehab Act, reasonable accommodations must be made for disabled individuals who use or request to use an assistance animal.
To Ask or Not to Ask
One of the key difficulties is knowing when and what you can ask.
ADA: A person walks in to an ADA-covered facility with a dog and claims the dog is a service dog but this is not readily apparent. If circumstances require you to inquire further, then, you need to determine whether the animal is truly a service animal, as defined above. To do this, you can only ask two questions:
- Is this a service animal that is required because of a disability?
- What work or tasks has the animal been trained to perform?
If the answers are yes and a description of work or tasks, then the animal must be permitted to accompany the disabled individual to all areas of the facility where the public is normally allowed to go.
FHA/ Rehab Act: A facility covered by the FHA and/or Rehab Act receives an accommodation request from an individual for an assistance animal. Two questions should be considered:
- Does the person seeking to use the animal have a disability – a physical or mental impairment that substantially limits one or more major life activity?
- Does the person making the request have a disability-related need for an assistance animal? (The animal works, provides assistance, performs tasks or service for the benefit of the disabled person, or provides emotional support that alleviates one or more of the identified symptoms or effects of a person’s existing disability.)
If the answer to both questions is yes, the entity must accommodate a reasonable request for an assistance animal, and no pet fee may be charged for an assistance animal.
Another important issue is whether you can ask for documents that support the person’s answers.
ADA: No. Under the ADA, you cannot ask for documentation.
FHA/Rehab Act: If a disability is not readily apparent and known, a housing provider may request reliable documentation of a disability and the disability-related need for an assistance animal. If you know the person is disabled but the disability-related need for an assistance animal is not readily apparent or known, you can ask for documentation of the disability-related need.
For example, someone with a mental health disability asks to keep an emotional support animal in a “no pets” housing facility. Documentation from a mental health professional should show that the person has a disability and that the animal assists with or alleviates one or more of the symptoms of the disabled individual.
ADA: A service animal must be allowed access except in a few scenarios where:
- the animal is out of control and the handler does not control it;
- the animal is not housebroken; or
- the animal poses a direct threat to the health or safety of others that cannot be sufficiently reduced or eliminated by a reasonable modification.
FHA/Rehab: Below are some examples of when an accommodation request is unreasonable or becomes unreasonable. Breed, size, and weight cannot be considered.
- Direct Threat to Health - The assistance animal poses a direct threat to others’ health or safety that cannot be sufficiently reduced or eliminated by another reasonable accommodation
- Substantial Damage to Property - The assistance animal would cause substantial physical damage to another’s property that cannot be reduced or eliminated by another reasonable accommodation
- Undue Burden – The accommodation would impose an undue financial and administrative burden on the covered entity.
- Fundamentally Alter Services Provided – The accommodation would fundamentally alter the nature of the covered entity’s services.
Some entities may be covered by both the ADA and FHA or Rehab Act. For these entities, it is important to note that you must comply with both approaches. Since the ADA is the more stringent, this is usually the best approach with which to start.
Looking Ahead – Federal Changes
Push-back from REALTORS® may see results at HUD. Amidst President Trump’s regulatory review push, the NAR sent a letter to HUD requesting additional and clearer guidelines on companion animals. Alabama REALTORS® supports reasonable accommodations for disabled individuals, including requests for service or companion animals. However, additional guidelines are needed to preserve this right, a right which is being diluted by unjustified requests.
NAR Letter to HUD
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