Is your Association discriminating against persons with an Emotional Support Animal?

Lets assume your community has a no pet policy.  For years that policy went unchallenged, but now your association finds itself with an accommodation request from an owner for an Emotional Support Animal.  Is your association required to approve that accommodation?  Is it legal for you to ask for additional documentation?  What are the consequences if you deny such a request?  These answers are becoming more common today than they were in the past.  With the improvement in technology, associations are facing challenges to their policies and procedures that were unheard of just a few years ago. 

In order to answer these questions, in this episode of Community Association Matters, we speak with Donna Dimaggio Berger, Esq. from the law offices of Becker.  First, we have to understand what is a disability.  A disability is a physical or mental impairment, which substantially limits one or more of such person’s major life activities.  Major life activities include caring for oneself, walking, talking, seeing, hearing, speaking, breathing, learning, working, and performing manual tasks.  There are physical disabilities as well as mental disabilities, such as depression, anxiety, panic disorders, stress related issues, OCD, PTSD, learning disabilities, autism, and ADHD/ADD, to name a few. 

 

Next, it is important to begin making the distinction between Service Animals and Emotional Support Animals, collectively called Assistance Animals.  According to the US Department of Justice, a Service Animal must be registered and are trained to do work or perform tasks for a person with a disability.  Service Animals are working animals and are not considered pets. 

Service Animals are typically governed by the ADA (Americans with Disabilities Act).  The ADA covers hotels, restaurants, and other public venues, including condotels, and condominiums that have retail space.  However, the Fair Housing Amendment Act does cover associations as they are housing providers and, among other things, it protects individuals from discrimination because of one’s race, color, religion, national origin, sex/gender, familial status, and/or handicap/disability. 

According to Donna, an Emotional Support Animal does not need to be registered and is not just restricted to being a dog or miniature horse; an Emotional Support Animal can be any type of animal as long as it does not conflict with municipal or local ordinances.  In addition, an Emotional Support Animal does not need to have a skill other than providing emotional support.  An individual requesting an accommodation for an Emotional Support Animal must provide a letter from a licensed medical professional verifying that the individual has a disability and that one of the major life activities is affected.  The letter should also describe the need for the specific accommodation or modification and must demonstrate the relationship between the disability and accommodation or modification.   In addition, the accommodation must be reasonable.

 

With today’s technology, some medical professionals may be speaking with a patient through teleconference.  So although the medical professional is not in the same city or country as the patient, an argument can be made that the medical professional is in fact treating that individual.  This is where some it becomes difficult for associations.   How does an association Board of Directors or manager know when a request for accommodation is valid or when it is fraudulent?  If an association denies the accommodation they may be exposing themselves to liability.  Donna recommends that an association adopt as a policy that all requests for accommodation be submitted to the association attorney who can perform additional vetting and rule out possible abuse.   In addition, it is a deterrent for those that are not legitimate.

 

It is also important that Board members understand that asking someone with a physical disability that is obvious, for a letter from a doctor that may in of itself be a violation.  However, per Donna, if the disability is not easily recognizable then the Board should ask the individual for a letter.  She adds that accommodations can be revoked if the accommodation is no longer reasonable.  Her firm has successfully revoked accommodations in the past.   However, Donna warns associations not to deny a request for accommodation for an Assistance Animal without consulting the association’s attorney.

 

It is important that all individuals be treated equally and that is why establishing a policy is the best course of action.  It ensures uniformity and in forwarding all accommodation requests to the association’s attorney, the association’s Board is limiting their exposure.