By Peter Vickery, Esq., Legislative Affairs Counsel
As readers know, the anti-discrimination laws require landlords to make exceptions to a no-animals policy if a tenant requests an exception as a reasonable accommodation for a disability. Landlords are allowed to ask for evidence that the person has a disability and that the exception would be a reasonable accommodation. What kind of evidence is sufficient is the subject of ongoing litigation. Also being litigated is the question of when an accommodation is reasonable and when it would cause the landlord undue (unreasonable) hardship.
Just before COVID-19 hit the United States, the federal Department of Housing and Urban Development (HUD) issued a new guidance document on the subject of assistance animals, a term that covers: 1) service animals, and 2) support animals. Its purpose is to clarify the rights and responsibilities of housing providers and people with disabilities in the area of reasonable accommodations under the federal Fair Housing Act (FHA).
Not a New Law
As HUD clearly states, the guidance document is just that: a guidance document, not a new regulation. Regulations have to go through public notice and comment under the Administrative Procedure Act (APA), whereas guidance documents do not. The guidance clearly states that it does not expand or otherwise alter any obligations under the federal Fair Housing Act, and that it should be construed consistently with Executive Order 13891, titled Promoting the Rule of Law Through Improved Agency Guidance Documents.
The Executive Order states that “agencies have sometimes used this authority inappropriately in attempts to regulate the public without following the rulemaking procedures of the APA. Even when accompanied by a disclaimer that it is non-binding, a guidance document issued by an agency may carry the implicit threat of enforcement action if the regulated public does not comply.”
Toward the end of the guidance document is a bullet point stating that “failure to adhere to this guidance does not necessarily constitute a violation by housing providers of the FHA or regulations promulgated thereunder.”
With this important caveat in mind, what does the guidance document say?
It simply describes best practices for landlords to follow when asking tenants for documents about their requests for accommodations.
For example, when a tenant with a non-observable disability (e.g., post-traumatic stress, bipolar disorder, depression) claims to need an Emotional Support Animal (ESA) but has not yet provided any supporting documentation, HUD suggests referring the tenant to the guidance document itself. In practice, landlords may wish to give tenants hard copies or a link to the document online.
The guidance also explains that:
- Reasonably supporting information often consists of information from a licensed health care professional – e.g., physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse – general to the condition but specific as to the individual with a disability and the assistance or therapeutic emotional support provided by the animal.
- A relationship or connection between the disability and the need for the assistance animal must be provided. This is particularly the case where the disability is non-observable, and/or the animal provides therapeutic emotional support.
- For non-observable disabilities and animals that provide therapeutic emotional support, a housing provider may ask for information that is consistent with that identified in the Guidance on Documenting an Individual’s Need for Assistance Animals in Housing in order to conduct an individualized assessment of whether it must provide the accommodation under the Fair Housing Act. The lack of such documentation in many cases may be reasonable grounds for denying a requested accommodation.
To recap, a landlord may require information from a licensed professional that states that the animal meets a disability-related need of the specific individual.
Regarding documents purchased online, i.e., “emotional support animal certificates,” the guidance states:
“Some websites sell certificates, registrations, and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee… In HUD’s experience, such documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal. By contrast, many legitimate, licensed health care professionals deliver services remotely, including over the internet. One reliable form of documentation is a note from a person’s health care professional that confirms a person’s disability and/or need for an animal when the provider has personal knowledge of the individual.”
Because of the problem of sketchy certificates, last year MassLandlords asked the Massachusetts Attorney General to issue an official advisory regarding the deceptive online ESA registries that exploit renters here in Massachusetts. So far, no such advisory from Attorney General Healey has appeared but the statement contained in the HUD guidance provides a helpful resource for landlords and tenants alike. For example, if tenants accompany their reasonable-accommodation requests with certificates purchased online, landlords can point to the guidance when explaining that they need to provide something different.
An accommodation that imposes undue burden on the landlord is not reasonable. The guidance document addresses this issue at the very end (but without describing just how a landlord should go about determining and proving undue burden):
“If a reasonable accommodation request is denied because it would impose a fundamental alteration to the nature of the provider’s operations or impose an undue financial and administrative burden, the housing provider should engage in the interactive process to discuss whether an alternative accommodation may be effective in meeting the individual’s disability-related needs.”
By “interactive process,” HUD means a conversation or series of conversations between landlord and tenant in which the landlord tries to find out whether there is some other way to accommodate the tenant’s disability. Landlords should document these conversations so that they can rely on them in court. A landlord facing a claim of discrimination wants to be able to show the judge (or the investigator at the Massachusetts Commission Against Discrimination) a series of emails or letters showing that the landlord made a good faith effort to come up with alternatives.
The new guidance document does not have the force of law, but it accurately describes the current state of the law around assistance animals. Landlords who receive requests to waive their no-animals rules should read it and give a copy to the tenants making the request.