Connor Wilden, Orten Cavanagh & Holmes, LLC
On January 28, 2020 the United States Department of Housing and Urban Development (“HUD”) released updated guidelines pertaining to Emotional Support Animals (“ESA”) under the Fair Housing Act (“FHA”). The FHA is a broad set of federal laws which apply to most housing and “prohibits discrimination because of race, color, national origin, religion, sex, familial status, and disability.” Previously in FHA-compliant housing, if a person has a disability, the housing was required to make reasonable accommodations for a disabled person’s service animal and emotional support animal without an in-depth inquiry into the reason for the service or emotional support animal.
Generally, under FHA guidelines, where a housing entity (such as a homeowners association) has rules and regulations limiting pets and animals, a disabled person is entitled to a reasonable accommodation to these limiting rules and is permitted to have a service animal or an emotional support animal. For example, a reasonable accommodation would be permitting an emotional support dog in an association which prohibits pets, or permitting an emotional support dog over a certain size restriction.
Unfortunately, because the previous guidelines did not permit any housing provider to inquire about the service animal or the emotional support animal, pet-owners all around the country were abusing the system to have their pets qualify as an emotional support animal. Online services offered, and continue to offer, certification for emotional support animals regardless of a person’s actual need for an emotional support animal. Seeing an easily-abused loophole, the FHA issued updated guidelines reassessing the procedure to evaluate a person’s request to have a reasonable-accommodation animal.
The updated guidelines materially alter the prior emotional support animal guidelines in two ways: 1) a housing provider may request further evidence if the emotional support animal documentation was obtained from the internet; and 2) the emotional support animal must generally be commonly kept in households.
1) If a person requesting an emotional support animal provides documentation, but the documentation is not from a licensed healthcare professional, the housing provider is permitted to request additional information which reasonably supports the person’s request for a reasonable accommodation. Under the new guidelines, online certification from a non-healthcare/certified provider is no longer sufficient to document the need for an emotional support animal.
If the person requesting the reasonable accommodation is unable to properly document that an emotional support animal is required for a disability, the housing provider is not required to offer the reasonable accommodation. Please note however, that while uncertified healthcare providers are no longer permitted to provide certificates for emotional support animals, there are still many online services from certified health professionals which can provide sufficient documentation for an emotional support animal. If an individual has such documentation, then it is likely that a reasonable accommodation should be granted.
2) The updated guidelines also place a substantial burden on a person requesting animals not commonly kept in households. The new guidelines provide that if a person is requesting a reasonable accommodation for a dog, cat, small bird, rabbit, hamster, fish, turtle or other small, domesticated animal traditionally kept in home for pleasure, then the reasonable accommodation should be granted. However, if the person is requesting a unique animal not commonly kept in households, then the person requesting has a substantial burden to show why a unique animal is required to assist with a disability.
As an example, the FHA describes an individual with severe spinal injuries who has a specially trained capuchin monkey who is able to retrieve bottled water, unscrew the lid, place a straw in the bottle, and bring the bottled water to the disabled individual. A capuchin monkey is not commonly kept in households but is specifically trained to assist the disabled person, and upon documentation of such need, a reasonable accommodation for the capuchin monkey should be made.
Please note: These new guidelines do not materially alter the previous guidelines in regards to service animals. You can find the new guidelines here.