The Americans with Disabilities Act (ADA) requires that state and local government agencies and non-profits that provide goods or services to the public make “reasonable modifications” in policies, practices, or procedures when needed to accommodate persons with disabilities. This requirement should be familiar to housing providers since it virtually mirrors the fair housing requirement regarding reasonable accommodations for disabled persons. ADA recognized service animals fall under this requirement, just as assistance animals for housing fall under the fair housing requirement relative to accommodations.
Under the ADA, a service animal is defined as a dog (and in some cases a miniature horse) that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the animal must be directly related to the person’s disability. This ADA definition has been broadened significantly for fair housing purposes and includes many types of animals other than dogs and miniature horses.
Fair housing law requires that owners and managers accept “emotional support” animals as a reasonable accommodation to a disabled person. The ADA has no such requirement, and emotional support, therapy, comfort, companion animals, etc. are not considered service animals. The reason is that such animals have not been trained to perform a specific task or job. However, the ADA does distinguish between psychiatric service animals and emotional support animals. For example, a dog trained to sense anxiety attacks and acting to reduce the severity of those attacks is considered a service animal.
The Department of Justice has provided guidance with regard to service animals under the ADA, and while much of it is not applicable to assistance animals for fair housing purposes, some of the guidance may be instructive for housing providers. Following is an outline of some ADA guidance that may be relevant to how owners handle assistance animals for fair housing purposes.
- What questions does the ADA permit if it is not obvious that an animal is a service animal?
- Is the dog a service animal required due to a disability; and
- What work or task has the dog been trained to perform?
No documentation relative to the training of the animal or proof of the dog’s abilities may be requested, nor may any inquiry be made regarding the nature of the disability.
For housing purposes, this may be a good policy to follow when guests bring assistance animals – including emotional support animals – to a property.
- The ADA does not require that a service animal wear a vest, ID tag, or specific harness – and neither should a housing provider.
- Handlers are responsible for the care and supervision of a service animal. This includes
- Grooming; and
- Vet care.
Housing providers are also not responsible for the care and supervision of assistance animals, and these issues should clearly be addressed in an “Assistance Animal Lease Addendum.”
- What about service animals in food service areas? The ADA states that service animals must be permitted to accompany handlers in self-service food lines and communal food preparation areas. The same is true for assistance animals in a housing environment. If a housing community has a central dining facility or community kitchen where residents can prepare food, assistance animals must be permitted in those areas.
- Can landlords designate certain units for assistance animals? This one is a bold and emphatic NO! The ADA prohibits hotels from restricting service animals to certain rooms and landlords may not restrict assistance animals to certain units or buildings.
- Can a cleaning fee be charged? Again – no. Hotels cannot charge a cleaning fee for a service animal and a landlord cannot charge a cleaning fee for assistance animals. However, in both cases, fees for damages are permitted.
- How many animals can a person have? The ADA permits a person to have as many service animals as the need (key word). For example, a person with a vision impairment and a seizure disorder may need two animals. The same applies in the context of housing. The need for each animal must be specifically related to a person’s disability.
- Do animals have to be certified? No – and no documentation of certification may be required. In fact, the ADA does not recognize online certification and registration documents as being an indicator that a person needs a service animal – and neither should a housing provider. A landlord, when verifying the need for an assistance animal, has the right to determine that the verifier is at least familiar with the applicant or resident’s disability and the effect of interaction with a specific animal.
- Landlords must allow assistance animals but have the right to require that local animal control and public health requirements be met. This includes documentation of vaccinations, spaying/neutering (if required in the area), and local licensing and registration.
- The ADA does not restrict breeds of dogs and neither may landlords. However, if a specific animal can be shown to be dangerous, it may be refused as an assistance animal at a property.
- What if a local ordinance bans certain breeds? The ADA requires that municipalities that prohibit specific dog breeds make an exception for service animals. This is likely the case for fair housing purposes also. Prior to refusing an assistance animal due to a local restriction, landlords should contact the locality to determine the procedure for requesting an accommodation due to the person’s disability.
- What does “under control” mean? For both ADA and fair housing, service and assistance animals must be under the handler’s control at all times. Does this mean that the animals must be leashed? What about barking? The ADA requires that service animals be harnessed, leashed, or tethered while in public places unless these devices interfere with the service animal’s work or the person’s disability prevents use of these devices. In that case, the person must use voice, signal, or other effective means to maintain control of the animal. For example, a person who uses a wheelchair may use a long, retractable leash to allow a service animal to pick up or retrieve items. They may not allow the dog to wander away and must maintain control of the dog, even when it is retrieving an item at a distance. Or, a returning veteran who has PTSD and has great difficulty entering spaces may have a dog that is trained to enter the space, check to see that no threats are there, and come back and signal that it is safe to enter. While the dog must be off leash to do its job, it may be leashed at other times. Under control also means that a service animal should not be allowed to bark repeatedly in an area where others may be disturbed. However, if a dog barks just once, or barks because someone has provoked it, this does not mean that the dog is out of control. This same guidance may be applied in a general way for housing purposes. For example, unless it interferes with an assistance animal’s work or the disabled person cannot use controlling devices, requiring that a service animal be leashed or otherwise contained in common and public areas would not be unreasonable. For housing purposes, the type of animal will also have to be considered with regard to what constitutes “control.” Clearly, a dog or cat may be leashed while in common areas, but what about a boa constrictor, which is sometimes used as an emotional support animal? In such cases, the animal being in contact with the disabled person at all times could constitute “total control.”
- What can staff do when a service or assistance animal is out of control? If a service (or assistance) animal is out of control and the handler does not take effective action to control it, staff may request that the animal be removed from the premises.
- Are service/assistance animals allowed in swimming pools? No – neither the ADA nor fair housing override public health rules that prohibit animals in swimming pools. However, these animals must be allowed on the pool deck and in other areas where the public is allowed to go, keeping in mind the “total control” requirement.
Owners and managers of apartment communities should keep in mind that while the ADA applies to housing programs administered by state and local governments, such as public housing authorities, and to places of public accommodation, such as public and private universities, it does not generally apply to privately owned apartments. But, the Fair Housing Act applies to virtually all types of housing, both public and privately-owned, including housing covered by the ADA. Under the Fair Housing Act, housing providers are obligated to permit, as a reasonable accommodation, the use of animals that work, provide assistance, or perform tasks that benefit persons with disabilities, or provide emotional support to alleviate a symptom or effect of a disability. While guidance relating to the ADA may be useful for housing operators in terms of establishing policies, fair housing requirements relative to assistance animals are much broader and far-reaching than ADA requirements regarding assistance animals.