‘I’m Allergic to Your Support Dog’: Handling Competing Requests for Disability Accommodations
Imagine a man holding a turquoise leash with a furry dog at its end standing beside a sign declaring “No Pets Allowed” in the elevator of his condominium building. He suffers from post-traumatic stress disorder and the cuddly canine alleviates the symptoms of his disorder.
Now, imagine the elevator stops at the third floor. Another resident of the building wishes to get in. However, she balks upon seeing the dog because she suffers from dog allergies. In fact, she purchased a unit in this particular building precisely because the condo documents establish it as a pet-free zone.
Following this elevator confrontation, each resident complains to the condominium association’s management team and board of directors. The resident with the dog claims that if his emotional-support animal were banned from the property, he would be a victim of discrimination. For her part, the woman says her allergies are disabling and that the association has a legal obligation to accommodate her and enforce its no-pets policy.
The impasse divides the community. Some residents allege discrimination. Others take the position that the laws are being exploited by dog-lovers seeking to skirt the rules to the detriment of residents with severe allergies and legitimate phobias.
What now? How does the condominium association handle the situation where one resident is allergic to another resident’s emotional support dog?
The United States Department of Housing and Urban Development (HUD) provided limited guidance on the subject in 2013. Based on that guidance and our experience in the industry, we generally counsel our clients to engage in the following two inquiries.
1. Does Each Person Have A Disability Under The FHA?
Not Every Person with Anxiety or Allergies is Disabled Under the Law
If that were the case, the entire world would be disabled in the eyes of the law.
To the contrary, the Act defines a disability as a mental or physical impairment that “substantially limits one or more major life activities.” A “major life activity” means those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking.” The term “substantially limits” suggests that the limitation is “significant” or “to a large degree.”
When a resident is blind or uses a wheelchair, the disability is readily apparent. Alternatively, a community association rarely has reason to know whether and to what extent its resident suffers from anxiety or allergies.
So how is an association to determine for itself whether a resident’s allergies or anxiety is severe enough to trigger the association’s obligations under the FHA? The answer: with care.
Asking for Too Much Information May Expose Liability
According to HUD, the association may ask the resident to provide a note from a third party such as a doctor, social worker, or mental health professional to establish that he or she is disabled. Where a resident requests an emotional support animal as a reasonable accommodation, the association can also ask for a note confirming that the animal alleviates one or more of the identified symptoms or effects of a disability. (An assistance animal does not need to be individually trained or certified.)
However, the association may not demand medical records, may not demand to speak with medical providers, and may not demand “detailed or extensive” information or documentation of the resident’s impairment.
Our Suggestion: Forms Can Help
In our experience, residents seeking a reasonable accommodation under the FHA typically provide our clients with inadequate doctor notes, putting our clients in a pickle. A typical doctor note states only that the resident is the doctor’s patient and that the doctor has diagnosed and treated the resident for anxiety. It does not establish that the resident’s anxiety “substantially limits one or more major life activities,” as required for FHA protection.
When our clients receive such a note, they may ask for some additional information, but they need to be careful to not conflict with HUD’s prohibition against asking for “detailed or extensive” information. To save our clients the trouble of walking this fine line, our office has prepared forms for the residents to ask their doctors to fill out and sign.
2. Is There Objective Evidence That The Animal In Question Poses A Direct Threat That Cannot Be Reduced Or Eliminated?
The General Rule and its Exception
If the resident with dog allergies and the resident with the emotional support dog are both disabled under the Fair Housing Act, then we generally ask whether the allergies are to the specific dog in question and, if so, how can the problem be mitigated.
According to HUD, the general rule is that a community association must modify or provide an exception to a “no pets” rule or policy to permit a person with a disability to live with and use an assistance animal in all areas of the premises where persons are normally allowed to go. There is an exception where the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation.
In Our Experience, People Who Are Allergic to and/or Fearful of Dogs Have Trouble Satisfying This Exception
According to HUD, a determination that an assistance animal poses a direct threat of harm to others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct. Mere speculation or fear about the types of harm an animal may cause is insufficient. Evidence of harm that other animals have caused is also insufficient.
Likewise, there is usually a way to reduce or eliminate any direct threat posed by an emotional support animal. In fact, with regard to the Americans with Disabilities Act, the U.S. Department of Justice has stated:
Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.
Our Suggestion: Negotiate a Compromise
In most cases, our office is able to successfully negotiate a compromise solution that works for everyone. As part of that process, we remind the residents that they are entitled to a reasonable accommodation—not a perfect accommodation or their preferred accommodation.
The laws on emotional support animals may be easy to exploit. They may not sufficiently protect people with fears and allergies. However, those grievances are more properly directed to the political branches. Community associations do not make the laws. They merely have the obligation to comply with the laws as written.
Shirley Steinbach is an attorney who counsels community associations in Maryland, DC, and Virginia. For more information about community associations handling ADA and Fair Housing Act matters, contact her at 301-657-0172 or [email protected].