HUD Issues Notice on Assistance Animals and Reasonable Accommodations For Persons with Disabilities

Today, the U.S. Department of Housing and Urban Development (HUD) issued a notice on assistance animals and reasonable accommodations for persons with disabilities.

Not long ago, I wrote a post on this subject. HUD's new notice also adds clarifying information to that post.

Disability-related complaints, including those involving assistance animals, are the most common discrimination complaints HUD receives, according to John Trasvina, HUD Assistant Secretary for Fair Housing and Equal Opportunity, so HUD felt the need to publish this Notice to provide further guidance.

The notice will provide landlords and management companies with an explanation of how to properly treat a request by a tenant or their guest for a reasonable accommodation to the landlord's "no pet" policy. Below are some highlights from the Notice, but I strongly encourage everyone to read the entire Notice.

Highlights:

1. While the definition of a "service animal" under the ADA has been limited to include only dogs that have been specifically trained (and it specifically excludes emotional support animals), this limited ADA definition DOES NOT limit a landlord's obligations to make reasonable accommodations for assistance animals under the Fair Housing Act and Section 504 of the Rehabilitation Act ot 1973 (or Wisconsin's Open Housing Law, for that matter)/

2. A reasonable accommodation analysis must be considered when persons with disabilities use (or seek to use) assistance animals in housing where the landlord forbids residents from having pets or otherwise imposes restrictions or conditions relating to the pet.

3. Assistance animals provide many disability-related functions including, but not limited to:

a. guiding individuals who are blind or sight-impaired

b. alerting individuals who are deaf or hard of hearing

c. providing protection or rescue assistance

d. pulling a wheelchair

e. fetching items

f. alerting persons to impending seizures

g. providing emotional support to persons with disabilities who have a disability-related need for such support.

4. For purposes of a reasonable accommodations request, there is no requirement that the animal be individually trained or certified.

5.  Landlords are to evaluate a request for a reasonable accommodation to possess an assistance animal in a rental unit using the general principles applicable to all reasonable accommodation requests.

6. After receiving such a request, a landlord must consider the following:

a. Does the person have a disability?

b. Does the person have a disability-related need for an assistance animal?

If the answer to both questions is "yes," federal laws (and Wisconsin's Open Housing laws) require a landlord to modify or provide an exception to its "no pets" rule or policy so the tenant can have an assistance animal.

7. The request for an assistance animal can be denied, even if the answers to the above questions were "yes", if:

a. the specific assistance animal poses a direct threat to the health and safety of others that cannot be reduced or eliminated by another reasonable accommodation.

b. the specific assistance animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

8. Breed, size, and weight limitations may not be applied to an assistance animal.

9. Landlords may not require applicants and residents to pay a deposit for an assistance animal.

10. Landlords may require a tenant to cover the cost of repairs for damage caused by an assistance animal to the rental unit or common areas after it has occurred.

11.  Landlords may ask individuals with disabilities whose disability is not readily apparent or known to the landlord to submit reliable documentation of a disability and their disability-related need for an assistance animal. The documentation is considered sufficient if it establishes the person has a disability and that the animal will provide some type of disability-related assistance or emotional support.

12. A determination as to whether a person has a disability-related need for an assistance animal involves an individualized assessment. There are no bright-line rules here. The analysis is very fact-specific.

13. A delayed response to a request for a reasonable accommodation could be considered a violation if the delay is solely to frustrate the process.