Before getting started on the blog entry for the week, a couple of housekeeping matters in order. First, you can now, if you so desire, listen to my blog instead of reading it even if you are not using a screen reader. I know many people would rather have what they see read to them rather than read it themselves (all you have to do is look at how podcasts are exploding). If you want to listen to one of our blog entries, all you have to do is click on the icon next to the, “listen to this post.” It is not my voice and the voice is a bit wooden, but nevertheless the blog entry can now be read out loud to you. The accent is that of an American male. I could have chosen male or female and UK or Australian. However, since I am an American male, I chose that. The other housekeeping matter is, I am headed out of town this week for the annual meeting of the Texas Bar Association taking place this year in Houston, and I will be speaking on the rapidly evolving world of service animals and emotional support animals in housing and employment. After attending the convention, I am going to get some R&R time with a buddy of mine who lives in Texas. So, I am not sure about a blog entry for the week of June 15.

This week’s blog entry is a bit different than our usual one, where I deconstruct a case and offer thoughts/takeaways, as it doesn’t pertain to a case at all. The saying goes the law abhors a vacuum. That is exactly what we have after the internal memorandum from HUD saying that emotional support animals in housing are no longer a thing. So, I thought it would make some sense if I could try to fill that vacuum with some ideas for how a landlord might proceed going forward in the absence of rulemaking. As usual, the blog entry is divided into categories, and they are: the Illinois Assistance Animal Integrity Act approach; what the DOJ approach might look like; what the EEOC approach might look like; and thoughts/takeaways. Of course, the reader is free to read any or all of the categories.

I

The Illinois Assistance Animal Integrity Act Approach

As of January 1, 2020, Illinois has had on its books the Assistance Animal Integrity Act, which we discussed here. That law in many ways codified HUD guidances that existed at the time on service animals and emotional support animals. It is possible that other states have enacted similar laws, though I haven’t looked into it as of yet. With regards to an approach for dealing with ESAs/SAs, an approach based upon the Illinois Assistance Animal Integrity Act might look like the following.

1. The Illinois law applies to emotional support animal or a service animal qualifying as a reasonable accommodation under the FHA for the Illinois Human Rights Act. The issue here is that it is really debatable as to whether an ESA qualifies under the FHA. Certainly HUD no longer believes so. The very first case I found dealing with an ESA in housing was a Southern District of Ohio case, Overlook Mutual Holdings, Inc. v. Spencer, decided July 16, 2009, here, holding that ESAs were allowed in the housing if they were necessary for the person to enjoy the housing. However, that decision relied heavily on the HUD regulation for public housing, which is quite a bit different than the HUD regulation for private housing. Other cases allowing ESAs in housing either relied on Overlook or followed the HUD guidances. I would need to do further research to find out how the Illinois Human Rights Act deals with emotional support animals, if it deals with that issue at all.
2. A housing provider may require a person to produce reliable documentation of the disability and the disability related need for the animal only if the disability or disability related need is not readily apparent or known to the housing provider.
3. Housing providers may ask a person to make the request on a standardized form, but cannot deny the request if the person did not use the form to submit documentation that otherwise meets requirements of the Illinois Assistance Animal Integrity Act.
4. If a housing provider receives a request for more than one assistance animal, it may request documentation establishing the disability related need for each animal unless the need for the animal is apparent.
5. Any documentation that a person has a disability requiring the use of an assistance animal as a reasonable accommodation in housing must be: 1) in writing; 2) be made by a person with whom the person requesting the accommodation has a therapeutic relationship; and 3) describe the individual’s disability related need for the assistance animal.
6. The request can be denied if any of the following exists: 1) an undue financial and administrative burden; 2) a fundamental alteration to the nature of the operations of the housing provider; 3) after conducting an individualized assessment, reliable objective evidence exists that the assistance animal either: A) poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation; B) causes substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation; or C) has engaged in a pattern of uncontrolled behavior that if the handler has not taken effective action to correct.
7. If the initial documentation provided by the person requesting accommodations does not satisfy ¶ 5 above, the housing provider may require additional supporting documentation. Also, if the initial documentation is not sufficient to show the existence of the therapeutic relationship, the housing provider may request additional information describing the professional relationship between the person and the individual with the disability.
8. A housing provider cannot deny an assistance animal solely due to the disability related needs of another resident. Instead, it has to attempt to balance the disability related needs of all residents.
9. The housing provider cannot require documentation of a specific diagnosis regarding the disability or disability related need.

II

What The DOJ Approach Might Look like

The internal memorandum talks about how future rulemaking will “harmonize,” with the DOJ approach to service animals. What that means is anybody’s guess. I thought I would take a shot at it. As I read it, there are two options. First, the DOJ approach. Second, adopting the EEOC approach to reasonable accommodations (EEOC has no regulation dealing with animals in the workplace).

Here is what the DOJ approach might look like where the tenant requests the accommodation of an emotional support animal or a service animal:

1. Where the tenant requests the accommodation of an emotional support animal, one approach might be to say automatically no to that request because HUD (consistent, in my opinion, with a reading of the law after the pulling of the guidances and Loper Bright), has said that ESAs are no longer a thing in housing. However, that approach is risky because case law exists saying that the FHA requires an interactive process.
2. If it is not readily apparent that the animal is a service animal, go ahead and make the two inquiries permitted by the DOJ final implementing regulations. Those inquiries are: 1) is the animal required because of a disability; 2) what work or task has the animal been trained to perform. The work or task must relate to a disability. Narrowly focused follow-up questions pertaining to the two inquiries are permitted if the information is not sufficient. You can’t make these two inquiries if it is readily apparent what the animal does for the person with a disability.

III

What the EEOC Approach Might Look like

Adopting the Title I approach to reasonable accommodations in general can be justified because the FHA has a necessity requirement. So, the approach might look like the following:

1. Where the connection between the service animal and the person with a disability is not obvious, you can seek narrowly focused documentation to establish that connection. Fishing expeditions you want to stay away from. Documentation you might seek includes but is not limited to: 1) establishing the bona fides of the healthcare provider supporting the recommendation; 2) establishing the relationship between the provider making the recommendation and the tenant; and 3) you might also consider the provisions of the Illinois Assistance Animal Integrity Act, above, for other documentation you might request regardless of whether you are in Illinois.
2. Keep in mind, it may be very difficult in some states to get a letter supporting a request for a service animal. See this blog entry.
3. The landlord is not entitled to know the disability itself but rather that it disability exists and how the animal helps the person deal with that disability(s).
4. Helpful to define service animal the same way as in the DOJ final Title II and Title III regulations.
5. Unreasonable delay in granting an accommodation is actionable. See this blog entry.

IV

Thoughts/Takeaways

1. I am not a big fan of guidances in general. Most of the time, I believe lawyers use guidances as a crutch. However, here we have a complete vacuum. Hopefully, this blog entry gives some ideas on how that vacuum might be solved until we have some rule-making.
2. This vacuum may go on for quite a while as rulemaking can take quite a bit of time. Also, this administration has only two more years left on it, and who knows what the next administration might look like.
3. I have absolutely no idea what “harmonizing with DOJ final regulations on service animals,” actually means. It would seem to me that the DOJ approach doesn’t really work for housing due to the nature of housing. Also, in the FHA world we are talking about whether it is necessary to enjoy the benefits of housing. So, it seems more likely that any rulemaking will resemble the EEOC general approach to reasonable accommodations.
4. One thing we do know is that in housing service animals can be more than a dog. Such a read is consistent with the HUD final regulation on service animals, which lists a guide dog as but one example of what a service animal can be.
5. The vacuum is real. Landlords are going to want to get with their legal counsel to discuss the various options and what might be the risks of going one way or the other. They also want to discuss just how aggressive their client should be when it comes to seeking out the information to decide whether the animal is necessary for the person with a disability to enjoy their housing. Of course, the more aggressive a housing provider is, the more likely a person with a disability is to push back, assuming they either have the economic resources to do so or can find an attorney to take on their case irrespective of those resources.
6. Don’t forget about state law. State law (such as Illinois), in the area may be few but they can be highly relevant as discussed above.
7. It does seem to be an incredibly risky proposition for a couple of reasons to reflectively deny a request for an emotional support animal in housing even though that may no longer be a thing. First, you still have case law out there, even though I think it can be distinguished in light of recent developments, saying an emotional support animal is permitted under the FHA if it can be shown to be necessary for enjoying the housing. Second, case law does exist saying the FHA requires an interactive process.
8. If the animal is acting as a service animal (trained to engage in recognition and response related to the person’s disability regardless of whether it is a dog or not), that person with the disability will have a much higher chance of getting that request approved than if it is an emotional support animal.
9. It is a very fine line between emotional support animal and a psychiatric service animal. Expect a huge explosion of psychiatric service animal claims.
10. For how might emotional support animal advocates these developments, an excellent piece was put out by the Disability Rights Education and Defense fund, here, and that certainly bears reading.