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 Feature Story
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need to be trained or certified. Support animals are also known as comfort animals or emotional support animals.”
Recall that a request by a housing occupant for permission to have an assistance animal is part of the broader concept of various requests for a reasonable accommodation of a person’s disability. Fair housing law makes it unlawful for a housing provider to refuse to make an accommodation that a person with a disability may need in order to have equal opportunity to enjoy and use a dwelling. Also recall that the granting of a reasonable accommodation cannot be conditioned on the payment of a fee or any other exaction [see 2 CCR §12280].
With that background in hand, we can move to a look at FHEO’s 2020 guidance, which is entitled Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act (available online at Assistance-Animals-2020). Although this guidance is given respecting the Federal law, California housing providers should read it with FEHA and state the regulations in mind. The guidance is intended to offer housing providers a set of best practices for complying with the FHA when assessing requests for reasonable accommodations to keep animals in housing. It replaces previous guidance issued in 2013, but still needs to be read together with other U.S. Department of Housing and Urban Development (HUD) fair housing regulations and guidance. It is divided into two parts; one that addresses assessing a request to have an assistance animal, and another addressing the documentation that might reasonably be requested by a provider. To be clear, unlike the California regulations, this guidance does not have the force and effect of law and is not meant to bind the public in any way.
To help guide the assessment of a request by an individual for an assistance animal, it first lays out a
question tree specific to whether or not an animal is a service animal under provisions of the ADA. If it is, and its presence does not pose a direct threat to the health or safety of other individuals, it must be allowed in the housing, including in common areas. If the question tree does not determine it to be an ADA-defined service animal, then the guidance describes further analysis, again utilizing a question tree. The questions deal with whether a person has an apparent or observable disability, whether a housing provider has otherwise been made aware that the person has a disability, and whether the provider has been provided information on how the animal benefits the person with respect to their disability.
Clearly an accommodation does not have to be made to individuals who do not have a disability or for who the animal is not needed to allow them an equal opportunity to use and enjoy their dwelling. However, if in following this analytical process housing providers initially conclude that they do not have to grant the accommodation, they would be wise to engage in a good-faith dialogue with the requestor, which is called the “interactive process”, before definitively denying a request. That interactive process is presented at page 7 of the Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act (available online at https://tinyurl. com/HUD-DOJ-Joint-Statement). The 2020 guidance also includes other general considerations related to a housing provider’s actions in processing a reasonable accommodation request, either for assistance animals specifically or other reasonable accommodations more generally.
The part of the 2020 guidance on documenting an individual’s need for an assistance animal seeks to provide best practices for that process. It offers a summary of information that a housing provider may
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