Article by: Attorney Christine Nentwig
It has become increasingly common to see people accompanied by service or assistance animals in public places, including restaurants, shopping malls and airports. Most service or assistance animals and the disabled individuals they serve are subject to broad protections with respect to both access to public places and housing under several federal (and many state) statutes.
Service Animals and the Law
The Americans with Disabilities Act (ADA) applies only to service dogs (and in some cases miniature horses) who have been trained to perform specific work or tasks for disabled persons. The provision of emotional support, comfort, or companionship is not “work” as defined by the ADA. The Fair Housing Act (and Section 504 of the Rehabilitation Act, which applies to recipients of federal assistance) defines “assistance animals” far more broadly as any species of animal that “works, provides assistance, or performs tasks for the benefit of a person with a disability, or which provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.”
Conflicting Laws Regarding Service Animals
In addition to obligations imposed on places of public accommodation – such as the restaurants, shopping malls, and airports mentioned above – both laws also require housing providers and municipalities to consider reasonable accommodations allowing individuals to house their service animals in spite of potentially conflicting lease or zoning restrictions. These overlapping and seemingly complex laws regarding service and assistance animals require housing providers and municipalities to exercise caution when evaluating requests for lease exceptions or zoning variances related to these animals. Recent cases have required accommodation for the housing of assistance ducks, pigs and other animals traditionally viewed as “fowl” or “swine,” which historically have been indiscriminately prohibited by many urban and suburban zoning ordinances. These cases, and the growing trend toward a wide variety of assistance animals of all shapes and sizes, suggest that landlords and municipalities alike should carefully review any request by someone with a disability to accommodate an animal of any species.
Balancing Accommodation and Housing-Provider Hardship
The analysis for any accommodation under the ADA or FHA is essentially a balancing of the need for the accommodation with the potential hardship created by granting the accommodation. In the housing context (as opposed to public accommodations), there is an additional element that requires analysis of the extent to which the accommodation of the service or assistance animal is necessary to allow the individual to more fully enjoy the dwelling of their choice.
Three primary factors should be considered when evaluating housing-related requests:
- Is there adequate evidence to support that the individual has a disability and that the assistance animal “works, provides assistance, or performs tasks for the benefit of a person with a disability, or which provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability.” Note that where the disability and need for the assistance animal is obvious, medical documentation may not be required.
- Is the assistance animal necessary to allow the owner to more fully enjoy their dwelling to an extent they otherwise would not?
- Does allowing the owner to house the assistance animal pose a direct threat of harm or create a hardship or burden on the housing provider, municipality, or other residents? Keep in mind that inflexible species, breed, weight and other restrictions are not permitted, nor should decisions be made based on speculation regarding possible harm or damage.
To the extent the answers to the above questions support accommodation of the assistance animal, the housing provider and/or municipality will likely be required to grant the request. CGA’s attorneys are familiar with the complex web of laws protecting disabled persons with service and assistance animals, and can assist both housing providers and municipalities with the detailed and fact-specific analysis required to evaluate accommodation requests.
