Americans with Disabilities Act and Service Animals
Tomorrow changes to the Americans with Disabilities Act (“ADA”) will go into effect. One of the most widely publicized of these changes relates to “service animals.”
In a Fact Sheet published by the U.S. Department of Justice (“DOJ”), the DOJ describes the changes to the new rule relating to service animals as follows: “The rule defines “service animal” as a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. The rule states that other animals, whether wild or domestic, do not qualify as service animals. Dogs that are not trained to perform tasks that mitigate the effects of a disability, including dogs that are used purely for emotional support, are not service animals. The final rule also clarifies that individuals with mental disabilities who use service animals that are trained to perform a specific task are protected by the ADA. . .”
From the HOA perspective, it is important to note that changes to the ADA relating to service animals apply primarily to permitting the entry of these dogs into businesses that serve the public. The DOJ’s publication entitled Commonly Asked Questions About Service Animals in Places of Business describes the application of this rule as follows: “Under the Americans with Disabilities Act (ADA), privately owned businesses that serve the public, such as restaurants, hotels, retail stores, taxicabs, theatres, concert halls, and sports facilities, are prohibited from discriminating against individuals with disabilities. The ADA requires these businesses to allow people with disabilities to bring their service animals onto business premises in whatever areas customers are generally allowed.”
This provision of the ADA may apply to HOAs that invite the public to take advantage of amenities like restaurants, club houses and other facilities. You should check with legal counsel to determine whether the “service animals” provision of the ADA applies to your association.
Fair Housing Act and Assistance Animals
From the HOA perspective, do not confuse the ADA changes with provisions of the Fair Housing Act (“FHA”) relating to “assistance animals.” According to a Memorandum published by the U.S. Department of Housing and Urban Development, changes to the ADA do not prohibit the ability of individuals with a disability to keep an “assistance animal” as a reasonable accommodation when such an animal would normally be prohibited.
The Memorandum explains this accommodation as follows: “. . . individuals with a disability may be entitled to keep an assistance animal as a reasonable accommodation in housing facilities that otherwise impose restrictions or prohibitions on animals. In order to qualify for such an accommodation, the assistance animal must be necessary to afford the individual an equal opportunity to use and enjoy a dwelling or to participate in the housing service or program. Further, there must be a relationship, or nexus, between the individual’s disability and assistance the animal provides. If these requirements are met, a housing facility, program or service must permit the assistance animal as an accommodation, unless it can demonstrate that allowing the assistance animal would impose an undue financial or administrative burden or would fundamentally alter the nature of the housing program or services.”
It is not uncommon for HOAs to be required to provide reasonable accommodations to individuals with disabilities by permitting them to keep animals that are prohibited under the governing documents. Assistance animals are not limited to dogs and also include animals that provide emotional support to an individual with a disability. Furthermore, assistance animals are not required to have the training that "services animals" must have under the ADA.
HOA violation of the ADA and FHA can lead to costly administrative action and even litigation. This can be prevented by consulting with legal counsel when considering a request for a reasonable accommodation under the FHA or determining whether the ADA applies to your community.