Fair Housing and Assistance Animals

Assistance Animals 101

Guest Blogger:
Jo Becker, Education/Outreach Specialist,
Fair Housing Council of Oregon
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It doesn’t seem to matter how many articles we write, classes we teach, presentations we give, guidebooks we publish, or videos we make and post, no matter where we are or what we’re doing Fair Housing Council staff always get questions about assistance animals.  Some inquiries can get complicated but, to be honest, many of them are the same fundamental questions.

We offer the following article as both an introduction to those the topic may be new to / refresher for those who are somewhat familiar, as well as a reminder on the differences between the Fair Housing Act (FHA)[1] and the Americans with Disabilities Act (ADA) per the Dept. of Housing and Urban Development (HUD).

A relatively recent document issued by HUD clearly affirms standard fair housing advice on the requirements to accommodate assistance animals in housing under the FHA, which is quite different than ADA requirements.  The 2013 HUD memo., in no uncertain terms, lays out the differences and assures readers that changes in the ADA’s definition of “service animals” has absolutely no affect on assistance animals under the FHA.

Following are a few excerpts from the memo.; the full document can be viewed at https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf.  (Emphases below have been added)

This notice explains certain obligations of housing providers under the Fair Housing Act (FHAct), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Americans with Disabilities Act (ADA) with respect to animals that provide assistance to individuals with disabilities.

The Department of Justice’s (DOT) amendments to its regulations’ for Titles II and III of the ADA limit the definition of “service animal” under the ADA to include only dogs, and further define “service animal” to exclude emotional support animals. This definition, however, does not limit housing providers’ obligations to make reasonable accommodations for assistance animals under the FHAct or Section 504.

Persons with disabilities may request a reasonable accommodation for any assistance animal, including an emotional support animal, under both the FHAct and Section 504.

An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.  Assistance animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support.

For purposes of reasonable accommodation requests, neither the FHAct nor Section 504 requires an assistance animal to be individually trained or certified.

While dogs are the most common type of assistance animal, other animals can also be assistance animals.

Housing providers are to evaluate a request for a reasonable accommodation to possess an assistance animal in a dwelling using the general principles applicable to all reasonable accommodation requests. After receiving such a request, the housing provider must consider the following:

  • Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
  • Does the person making the request have a disability-related need for an assistance animal?

Where the answers to questions (1) and (2) are “yes,” the FHAct and Section 504 require the housing provider to modify or provide an exception to a “no pets” rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services.  If the answer… is “no,” then the… request may be denied.  <Requests> may also be denied if:

  • the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or
  • the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

A determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct — not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused.

Conditions and restrictions that housing providers apply to pets may not be applied to assistance animals.  For example, while housing providers may require applicants or residents to pay a pet deposit, they may not require applicants and residents to pay a deposit for an assistance animal.  <In addition,> breed, size, and weight limitations may not be applied to an assistance animal.

Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider <or if the need for the assistance animal is not apparent> to submit reliable documentation of a disability and their disability-related need for an assistance animal.  For example, the housing provider may ask persons who are seeking 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.  <NOTE:  Case law tells us that such verification does not necessarily need to come from a medical provider.  In truth, a family member or the individual him/herself may act as the verifier in some situations, though is not particularly common.>

So, what about the ADA?  Do you have obligations under it, as well, as a housing provider?  Maybe…

Certain entities will be subject to both the service animal requirements of the ADA and the reasonable accommodation provisions of the FHAct and/or Section 504. These entities include, but are not limited to, public housing agencies and some places of public accommodation, such as rental offices, shelters, residential homes, some types of multifamily housing, assisted living facilities, and housing at places of education. Covered entities must ensure compliance with all relevant civil rights laws.

The preambles to DOJ’s 2010 Title II and Title III ADA regulations state that public entities or public accommodations that operate housing facilities “may not use the ADA definition [of “service animal”] as a justification for reducing their FHAct obligations.”  <The preamble further indicates that> under the FHAct, “an individual with a disability may have the right to have an animal other than a dog in his or her home if the animal qualifies as a ‘reasonable accommodation’ that is necessary to afford the individual equal opportunity to use and enjoy a dwelling, assuming that the use of the animal does not pose a direct threat.”  In addition,… emotional support animals that do not qualify as service animals under the ADA may “nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHAct.” While the preambles expressly mention only the FHAct, the same analysis applies to Section 504.

DOJ’s revised ADA regulations define “service animal” narrowly 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. The revised regulations specify that “the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Thus, trained dogs are the only species of animal that may qualify as service animals under the ADA <not the FHA> (there is a separate provision regarding trained miniature horses), and emotional support animals are expressly precluded from qualifying service animals under the ADA <not the FHA>.

The ADA definition of “service animal” applies to state and local government programs, services activities, and facilities and to public accommodations, such as leasing offices, social service center establishments, universities, and other places of education.

<Under the ADA the> animal may not be denied access to the ADA-covered facility unless:

  • the animal is out of control and its handler does not take effective action to control it;
  • the animal is not housebroken (i.e., trained so that, absent illness or accident, the animal controls its waste elimination); or
  • the animal poses a direct threat to the health or safety of others that cannot be eliminated or reduced to an acceptable level by a reasonable modification to other policies, practices and procedures. A determination that a service animal poses a direct threat must be based on an individualized assessment of the specific service animal’s actual conduct — not on fears, stereotypes, or generalizations. The service animal must be permitted to accompany the individual with a disability to all areas of the facility where members of the public are normally allowed to go.

<NOTE:  In all ways related to disability-related animals, the FHA is more liberal than the ADA.  If DOJ stipulates the above items for “service animals” under the ADA, than you can be fairly certain that they are – at a minimum – what would be considered reasonable for assistance animals under the FHA.>

In cases where all three statutes apply…. the housing provider should apply the ADA service animal test first. This is because <under the ADA, not the FHA> the covered entity may ask only whether the animal is a service animal that is required because of a disability, and if so, what work or tasks the animal has been trained to perform. If the animal meets the test for “service animal,” the animal must be permitted to accompany the individual with a disability to all areas of the facility where persons are normally allowed to go, unless <see points (1), (2), and (3) above>.  If the animal does not meet the ADA service animal test, then the housing provider must evaluate the request in accordance with the guidance provided in Section I of this notice.  <Note that compliance> with the FHAct and Section 504 does not ensure compliance with the ADA. Similarly, compliance with the ADA’s regulations does not ensure compliance with the FHAct or Section 504… It is the housing provider’s responsibility to know the applicable laws and comply with each of them.

For yet more information on this topic including other memos from HUD, previous FHCO articles, sample accommodation / modification forms, and other guidance visit:

  • FHCO.org/disability.htm,
  • FHCO.org/assistanceanimals.htm,
  • FHCO.org/guidebooks.htm,
  • FHCO.org/forms.htm.

This article brought to you by the Fair Housing Council; a civil rights organization.  All rights reserved © 2015. Write jbecker@FHCO.org to reprint articles or inquire about ongoing content for your own publication.

To learn more…  Learn more about fair housing and / or sign up for our free, periodic newsletter at www.FHCO.org.

Qs about this article?  ‘Interested in articles for your company or trade association?  Contact Jo Becker at jbecker@FHCO.org or 800/424-3247 Ext. 150

Want to schedule an in-office fair housing training program or speaker for corporate or association functions?  Visit www.FHCO.org/pdfs/classlist.pdf

[1]   Federally protected classes under the Fair Housing Act include:  race, color, national origin, religion, sex, familial status (children), and disability.  Oregon law also protects marital status, source of income, sexual orientation, and domestic violence survivors.  Additional protected classes have been added in particular geographic areas; visit FHCO.org/mission.htm and read the section entitled “View Local Protected Classes” for more information.