If you’re like most people, you probably use the terms service animal and assistance animal interchangeably especially when discussing the recent media coverage about the person with an emotional support alligator or the peacock trying to board an airplane. If you’re a multifamily professional, not knowing the difference between these two terms could result in costly and risky unintended consequences.
To help prevent such a scenario from happening, you simply need to know the difference between a service animal and an assistance animal. More importantly, knowing when and how to deal with each one is imperative. Understanding the differences can help ensure you don’t ask an inappropriate question that could result in inadvertently discriminating against a person with a disability or help prevent a bad actor from committing animal fraud.
Service animals are covered under the Americans with Disabilities Act (ADA), which is applicable to areas of public accommodation where members of the general public are allowed. Areas within multifamily residential communities that qualify as places of public accommodation are covered by the ADA if use of the areas is not limited exclusively to owners, residents, and their guests. That means the main leasing office, which is open to the general public, is covered by ADA requirements for service animals. The ADA, however, does not cover animal-related accommodation requests for private residency such as apartment homes.
The ADA specifically limits a service animal to a dog or a miniature horse and the service animal must be trained to perform a task(s) for the benefit of an individual with a disability. Animals that offer emotional support, comfort, protection and companionship do not meet the definition of a service animal and are not covered under the ADA. The important issues to note about a service animal are that you are only allowed to ask two questions and no proof is needed:
It is noteworthy that these two questions can be asked only if any disability is non-obvious or invisible. For clarity, if a person walks into your leasing office and has an obvious visual impairment and has an accompanying animal then no questions regarding the service animal should be asked. Lastly, there is no service animal national registration or certification recognized by the ADA.
Unlike service animals covered by the ADA for areas of public accommodation, animals specifically needed for private housing accommodations are covered by the Fair Housing Act (FHAct) and are referred to as assistance animals. An assistance animal under the FHAct may be a service animal, emotional support animal, or any other animal that works, provides assistance, or provides emotional support to help alleviate or ameliorate a person’s disability.
Unlike the ADA that limits service animals to a dog or miniature horse, the FHAct provides no exhaustive list of types of assistance animals although the test of reasonableness can be applied. In case you were wondering, it would be reasonable to assert that an alligator is a dangerous animal and to deny the reasonable accommodation request. Assistance animals do not need to be trained to perform a task because they could, for example, provide necessary emotional support for a person with post-traumatic stress disorder (PTSD).
Any person with a non-obvious or invisible disability who is seeking to live with his or her assistance animal is required to submit a reasonable accommodation request. The important issue to note about an assistance animal is that you are only allowed to ask two questions:
It is noteworthy that these two questions can be asked only if any disability is non-obvious or invisible. Just like the example used above for a service animal, if a person walks into your leasing office and has an obvious visual impairment and has an accompanying animal then no questions regarding the assistance animal should be asked. Just like the ADA, there is no assistance animal national registration or certification recognized by the FHAct.
It is permissible to ask the Requester (i.e. the person seeking the reasonable accommodation) to provide third-party documentation from a health care professional affirming a disability and that a disability-related need exists for the assistance animal. It is not only important to ask the two permissible questions, but to also validate and authenticate the documentation as credible to help prevent fraud. Third-party documentation from a health care professional often includes more information than requested and is highly sensitive and confidential in nature. It should be properly stored in a timely manner in a secure place to prevent possible legal claims associated with the mishandling of a person’s medical information by any employee or agent.
After you, your animal screening partner or your legal counsel determines that an accommodation request for an assistance animal is legitimate then it is not to be treated or referred to as a household pet. This means you cannot charge pet-related fees of any kind such as pet rent, deposit or non-refundable fee.
Everyone will agree that there are people with legitimate disabilities and disability-related needs for assistance animals and a reasonable accommodation should be made. Sadly, though, many residential prospects are trying to circumvent a community’s pet policies such as pet breed restrictions or even avoid paying additional pet fees. These bad actors are willfully attempting to defraud a community’s pet-related policies and will often become boldly adamant that you’re not allowed to ask questions or require them to provide proof of their disability and disability-related need for the assistance animal.
Many animal owners believe their rights for a housing accommodation are covered under the ADA’s service animal distinction, which is inaccurate, and are usually unaware of the FHAct’s guidelines and the permissible review process for housing providers. It is not uncommon that these animal owners might even threaten legal action and become combative which often intimidates on-site agents and housing providers to accept the animal without a proper and thorough review just to avoid the threat of a legal issue or HUD claim.
Don’t let this happen to you. Know your rights under the FHAct and honor your responsibility to ensure a safe community for all your residents. Please consider using a no-charge, third-party pet screening and assistance animal validation provider. You’ll help mitigate your liability, save a lot of time, prevent unnecessary lost pet revenues while creating consistency and standardization for pet policies and assistance animal review procedures for all of your property managers and apartment communities.
Note: The information in this article is based on HUD's 2013 memo regarding assistance animals. HUD has since released new guidelines in the 2020 Assistance Animal Notice (FHEO-2020-01). 2/5/2020