Disability FAQs: Answering Your Questions About Reasonable Accommodations & Modifications
In this month’s lesson, the Coach focuses on requests by individuals with disabilities for reasonable accommodations and modifications.
Disputes over requests for disability-related accommodations and modifications frequently lead to fair housing trouble. Though the law has been on the books for decades, the rules governing disability-related accommodation and modification requests are often difficult to apply in the real world. The law requires communities to consider each request on a case-by-case basis, making it nearly impossible to find any cut-and-dried rules to follow. And the many physical and psychological impairments that may qualify as disabilities, along with the wide variety of accommodations that may be requested, could lead to confusion—even misconceptions—about how to handle accommodation requests.
In this lesson, we’ll review the law and offer questions and answers—with real-world examples—about how to handle disability-related requests for reasonable accommodations and modifications.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) bans housing discrimination based on disability, so it’s unlawful to deny housing to individuals with disabilities or to discriminate against them in the terms, conditions, and privileges of the tenancy.
But there’s more to it than that, since the law requires communities to grant requests for reasonable accommodations and reasonable modifications when necessary to enable an individual with a disability to fully use and enjoy his or her home. Reasonable accommodations are changes or exceptions to rules, policies, practices, or services; reasonable modifications are structural changes to interiors and exteriors of units and to common and public use areas.
Only individuals who qualify under the FHA’s definition of “disability” are entitled to reasonable accommodations or modifications. Under the FHA, a disability generally means a physical or mental impairment that substantially limits one or more major life activities. The law also requires that the requested accommodation or modification be “necessary,” which means that there’s an identifiable connection between the individual’s disability and the requested accommodation or modification.
Nevertheless, housing providers aren’t required to grant a request for a disability-related accommodation if it’s unreasonable—that is, it would impose an undue financial and administrative burden on the community or result in a fundamental alteration of its operations. Moreover, the FHA doesn’t protect an individual with a disability whose tenancy poses a direct threat to the health or safety of others or substantial physical damage to the property of others, unless the threat may be eliminated or significantly reduced by a reasonable accommodation.
12 FAQS ABOUT HANDLING REQUESTS
FOR REASONABLE ACCOMMODATIONS & MODIFICATIONS
Reasonable Accommodation Requests—Assistance Animals
Questions about assistance animals top the list when it comes to fair housing law. It’s not surprising, given that disputes involving assistance animals are among the most common sources of fair housing trouble.
Fair housing law doesn’t prevent communities from adopting and enforcing pet policies: Some communities ban pets altogether, while others place limits on the number, type, size, or weight of pets and impose conditions such as pet deposits or rent charges. Whatever your policy or rules on pets, you must make an exception to allow an assistance animal when one is needed by an individual with a disability to fully use and enjoy the community.
Fair housing law allows not only service dogs, but also any type of animal that provides assistance or emotional support to an individual with a disability. HUD says that breed, size, or weight limitations may not be applied to an assistance animal. Assistance animals don’t have to be individually trained or certified, and they all have the same legal standing regardless of what type of assistance they provide to an individual with a disability.
Don’t deny a request just because you’re uncertain about whether the applicant or resident has a disability or a disability-related need for an assistance animal. If the resident’s disability isn’t readily apparent, then HUD says that you may ask for reliable disability-related information that’s necessary to verify that the resident has a disability that qualifies under the FHA—that is, a physical or mental impairment that substantially limits one or more major life activities—and has a disability-related need for the animal.
For example, HUD says that you may ask applicants who request a reasonable accommodation for an emotional support animal to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is sufficient if it establishes that an individual has a disability and that the animal in question will provide some type of disability-related assistance or emotional support, according to HUD.
Q: Do we have to consider making an exception to our no-pet policy to allow a resident with disabilities to keep an emotional support animal?
A: Yes, federal and state fair housing laws require you to consider making an exception to your no-pet policies as a reasonable accommodation when requested by residents with disabilities to keep emotional support animals.
In March 2018, for example, the Justice Department announced that a 1,118-unit condominium community in New York City agreed to a $125,000 settlement for allegedly refusing to allow three residents with psychiatric disabilities to live with emotional support dogs in their units.
According to the complaint, the community had a no-pet policy and generally required residents requesting reasonable accommodations for assistance animals to submit notarized statements from two doctors, including in some cases, detailed information about their disabilities, and sometimes required residents or their doctors to answer a series of follow-up questions. If requests were rejected, the community allegedly didn’t provide any reasons for the rejection. The complaint alleged that each of the residents applied for emotional support animals and all the requests were denied. Under the settlement, the community agreed to pay a total of $125,000 in damages and civil penalties and to adopt a new reasonable accommodation policy.
Meanwhile, California officials recently announced a $28,000 settlement to resolve a resident’s complaint that she was threatened with eviction from her rent-controlled apartment because of her emotional support animal.
In her complaint, the resident claimed that she was notified that she had to remove her emotional support dog from the unit within 30 days or face eviction. Fearing the loss of her home, she took the dog to a relative’s home several hours away. Allegedly, the management company denied her repeated requests to bring the dog back as a reasonable accommodation, even after she provided documentation from a licensed mental health practitioner of her need for an emotional support animal.
“The law requires landlords to modify policies, including no-pet policies, to reasonably accommodate people with disabilities,” Kevin Kish, the director of the California Department of Fair Employment and Housing (DFEH), said in a statement. “Landlords have a duty to engage in the interactive process when a tenant requests a reasonable accommodation for a disability, and those who refuse to do so because the requested accommodation involves an animal are in violation of the law.”
Q: Can we require residents to sign our standard pet addendum and pay a pet deposit to keep an emotional support animal?
A: Not if you want to avoid fair housing trouble under federal or state law.
In October 2018, the owners of a California community agreed to pay $27,500 to resolve allegations that they unlawfully refused a reasonable accommodation request for an exception to their no-pets policy for an emotional support animal unless the residents paid a pet deposit and signed a pet addendum.
In their complaint, the residents claimed that they made numerous attempts to seek a reasonable accommodation in the form of an emotional support animal. Allegedly, the landlords repeatedly refused to grant an exception to the no pets-policy and made statements questioning the animal’s status as an emotional support animal. After several months, the landlords demanded the residents pay a pet deposit and sign a pet addendum as a condition of keeping the assistance animal.
“The law is clear that emotional support or companion animals are not pets,” DFEH Director Kevin Kish said in a statement. “Treating an assistance animal as a pet, including by refusing to allow an assistance animal at a property because of a no-pets policy or generalized fear of animals, runs afoul of California’s fair housing laws.”
Q: Can we require people with assistance animals to use a service door instead of the main entrance?
A: Not as far as HUD is concerned. HUD says that residents with disabilities may use assistance animals in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of your services.
In October 2018, for example, HUD charged a New Jersey condo association with disability discrimination for allegedly requiring a resident, who was sight and hearing impaired, to use the service door instead of the main entrance to the development or the common areas when accompanied by her assistance animal. HUD’s charge further alleged that the condo association charged the resident’s daughter a fee because she walked her mother’s assistance animal in the development’s common areas.
In her HUD complaint, the daughter claimed that the condo association refused to waive its requirement that residents transport pets in carriers when in common areas and was fined $100 for walking the animal in the development’s common areas. Because of the resident’s mobility impairments, the daughter said she was primarily responsible for walking the dog. When the resident was with her assistance animal, according to the complaint, she was required to use the service door to enter and exit the building. The charge will be heard by a U.S. administrative law judge unless one of the parties elects for the case to be heard in federal court.
“Subjecting someone to different residency requirements because they use an assistance animal prevents that person from fully enjoying their home and is against the law,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said. “Condo associations have an obligation to comply with the requirements of the Fair Housing Act when it comes to reasonable accommodations and HUD is committed to ensuring that they meet that obligation.”
“Rules that limit access to condominium common areas for persons with disabilities who need an assistance animal violate the Fair Housing Act,” said J. Paul Compton Jr., HUD’s General Counsel. “This charge represents HUD’s commitment to ensuring that persons with disabilities are allowed to fully use and enjoy their homes.”
Q:Do we have to allow assistance animals in the passenger elevator when someone other than the disabled resident takes it for a walk?
A: The rules are less clear when someone other than the disabled resident takes an assistance animal into common areas, but you could face a discrimination complaint if you restrict access to the facilities by assistance animals.
In November 2017, for example, a court refused to dismiss a lawsuit against a Florida condo community filed by a woman with disabilities who leased a unit in the building. The woman, who used a wheelchair, was accompanied by a personal assistant and an assistance animal, a standard poodle, which exceeded the size and weight restrictions under the community’s pet policy. Although the association permitted her to keep the dog, the resident claimed that the community failed to reasonably accommodate her use of her assistance animal by placing restrictions on the dog’s use of the elevator when not in her presence. According to the woman, the community required her personal assistant to use the stairs instead of the elevator when taking the dog outside to relieve itself when she wasn’t with them. She also claimed that she and her assistant were subjected to harassment when using the service dog in the elevators and common areas of the building [Siler v. Abbott House Inc., Florida, November 2017].
Q: Do we have to grant a resident’s request for an emotional support animal if it’s an exotic animal barred by local law?
A: Though the issue hasn’t been settled in fair housing cases involving rental property, courts have rejected similar requests involving exotic animals barred under local zoning ordinances.
In March 2018, for example, a court dismissed a disability discrimination case against a Texas city for denying a reasonable accommodation request by a resident who wanted to keep a seven-pound ring tail lemur as an emotional support animal despite a city ordinance against exotic animals.
In her lawsuit, the resident claimed that she was disabled due to physical and mental impairments, and that the lemur was an emotional support animal that improved her quality of life. The lemur had bitten people three times; the third time occurred after the resident moved to the city, in the resale shop she operated out of her home, when the lemur jumped on a customer and bit her arm.
Soon after, the city enacted the ordinance that banned exotic animals, including all non-human primates, from the city. The city denied the resident’s request for a reasonable accommodation to keep the lemur as an emotional support animal.
Siding with the city, the court ruled that the resident failed to show that her requested accommodation was reasonable. Before the ordinance was passed, the resident’s lemur had injured at least three people—the third occurred in the city, and the victim lodged a complaint with local police. That injury and legitimate citizen complaint set the events in motion that led to the enactment of the ordinances prohibiting exotic animals, including non-human primates, from being kept in the city. The resident failed to present any evidence to show that the threat of danger posed by her lemur, documented by a history of attacks, could be reduced or eliminated with an alternative option that was reasonable [Baughman v. City of Elkhart, Texas, March 2018].
Reasonable Accommodation Request—Parking
Q: Do we have to consider a request to designate a parking space for a resident with disabilities?
A: Even if your general policy is to provide unassigned parking on a first-come, first-served basis, you must consider making an exception to the policy as a reasonable accommodation when needed by an individual with disabilities so she may use and enjoy her home.
In October 2018, for example, HUD charged the owners and managers of a West Virginia community with discrimination for refusing the request of a resident with disabilities to have a designated parking space.
In its charge, HUD alleged that the community refused to grant a designated parking space to a resident with disabilities, despite the resident providing medical documentation attesting to her need for the accommodation. As a result, HUD alleged, the resident and her children had to move to a different complex. The charge will be heard by a U.S. administrative law judge unless either party elects to have the case heard in federal district court.
“For many individuals with disabilities, certain accommodations are necessary in order for them to fully enjoy their home,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD will continue to take action to ensure that housing providers recognize and meet their obligation to comply with the nation’s fair housing laws.”
“When a resident needs a designated parking space as an accommodation for her disability and providing one will not be an undue burden or fundamental alteration, a housing provider must do so,” added Paul Compton, HUD’s General Counsel. “We want housing providers to know what their legal responsibilities are and to follow them. If they don’t, we will bring charges like this one.”
Reasonable Accommodation Requests—Transfer
Q: Do we have to consider a disability-related request to transfer to a non-smoking unit?
A: Yes, whatever your policy on resident transfers, you have an obligation under fair housing law to provide reasonable accommodations to rules, policies, and practices when necessary to afford individuals with disabilities an equal opportunity to enjoy the premises. That means that you may have to make an exception to general rules restricting transfers as a reasonable accommodation for an individual with a disability.
In June 2018, for example, HUD approved a $12,000 settlement with two San Francisco real estate companies accused of denying a family’s disability-related request to move to a non-smoking unit.
The case came to HUD’s attention when the family filed a complaint against the community’s owner and its property manager, who manages their building through HUD’s Rental Assistance Demonstration Program, for allegedly denying their request to move to a unit in a non-smoking building as a reasonable accommodation. The family’s infant has a disability that affects his breathing. Instead of transferring them to a smoke-free building, the family said that the property manager gave them an air purifier.
“A smoke-free environment can make a world of difference to a family whose child has a disability that limits their breathing,” HUD Assistant Secretary for Fair Housing and Equal Opportunity Anna María Farías said in a statement. “Reaching a mutually agreeable settlement of the case is a ‘win-win’ for everyone involved.”
Reasonable Accommodation Request—Community-Wide Smoking Ban
Q: Do we have to make the entire community smoke-free as a reasonable accommodation for a resident with a disability?
A: There are limits on how far you must go to accommodate a disabled resident. According to federal guidelines, requests for reasonable accommodations may be denied if providing the accommodation isn’t reasonable—that is, it would impose an undue financial and administrative burden on the community, or it would fundamentally alter the nature of the community’s operations.
In November 2018, for example, a court granted judgment without a trial to a Michigan condo association in a case filed by a resident who wanted smoking banned throughout the complex, including the interior of all units and common areas.
The resident, a unit owner, was a breast cancer survivor who had asthma and multiple chemical sensitivity. Allegedly, her medical conditions substantially interfered with her ability to breathe when she was exposed to cigarette smoke and other irritants. After she repeatedly complained about smoke seeping into her unit from neighboring units, the community installed a fresh air system on her furnace ductwork to help with the smoke problem. Eventually, she demanded that the entire community be made smoke-free, but the condo association declined. The relevant condo documents didn’t prohibit smoking at the community; by law, the condo association couldn’t ban smoking inside units without the vote of at least two-thirds of unit owners.
The resident sued, claiming that the condo association violated fair housing law when it didn’t accommodate her sensitivity to secondhand smoke by banning smoking throughout the complex, including within private residences. In its defense, the condo association argued that the accommodation the resident demanded was unreasonable, particularly since smoking within one’s home wasn’t illegal.
The court agreed, noting that the condo association presented the resident’s request to ban smoking throughout the complex for a vote, but the measure didn’t pass. In the wake of that decision, it wasn’t reasonable to impose upon the condo association the administrative burden of implementing a restriction on unit owners in a way that violated the law. Imposing a smoking ban on all unit owners, the effect of which would be to restrict them from engaging in a lawful activity on their own property, couldn’t be accomplished without a violation of existing law.
The condo association didn’t ignore the resident’s complaints since it went to some lengths to accommodate her concerns, from installing a fresh air filtration system on her furnace ductwork to administering a complex-wide referendum on her smoking ban proposal. Changing the entire complex from a smoking-permitted to a smoke-free development without proper consent that Michigan law required, however, was a bridge too far [Davis v. Echo Valley Condo Association, Michigan, November 2018].
Editor’s Note: Smoking is banned in all public housing under a new rule that went into effect on July 31, 2018. HUD’s final rule requires public housing authorities to implement a smoke-free policy banning the use of prohibited tobacco products in all public housing living units, indoor common areas in public housing, and in administrative office buildings. The smoke-free policy also extends to all outdoor areas up to 25 feet from the public housing and administrative office buildings. For more information, visit https://www.hud.gov/program_offices/healthy_homes/smokefree.
Reasonable Accommodation Request—Criminal Background Check
Q: Do we have to consider a request for an exception to our criminal background screening policy as a reasonable accommodation?
A: The law is far from settled, but you could face a fair housing complaint if you refuse to consider a reasonable accommodation request for an exception to your criminal screening policy from an applicant who claims that the conviction is related to a disability.
In February 2018, for example, a court refused to dismiss a disability discrimination case against a Virginia community involving a resident who wanted her adult son to move in with her. Allegedly, the son had a misdemeanor conviction for indecent exposure, and the community denied his application on that basis alone. The son asserted that his mental illness caused the act resulting in his conviction, so the mother asked the complex to reconsider the application without reference to the conviction.
The community refused, arguing that the FHA’s protections against disability discrimination categorically don’t apply to those convicted of crimes. The community argued that housing providers may issue blanket denials of housing to those convicted of crimes, regardless of an applicant’s disability status, and even if the criminal conduct derived from his disability.
The court disagreed, denying the community’s request to dismiss the case. The FHA doesn’t always require accommodations for a conviction allegedly caused by a disability (and indeed never requires an accommodation for those convicted of certain drug crimes), but that wasn’t at issue in this case. The court also rejected the community’s claims that the son’s misdemeanor conviction for indecent exposure made him a direct threat to the health and safety of others. Although the offensiveness of indecent exposure shouldn’t be understated, the court said that it was in essence a public morals crime, not one that categorically presented a direct threat to others’ health and safety [Simmons v. T.M. Associates Management, Virginia, February 2018].
Reasonable Modification Request—Automatic Door Opener
Q: Do we have to consider a resident’s disability-related request to install an automatic door opener to her front door?
A: Yes, fair housing law requires communities to permit applicants or residents with a disability, at their expense, to make reasonable modifications to the housing if necessary to afford them full enjoyment of the premises. A request for reasonable modification may be made at any time during the tenancy, and it may include structural changes to interiors and exteriors of units and to common and public use areas. While housing providers must permit the modification, the resident is responsible for paying the cost of the modification.
In October 2018, for example, HUD charged the owner of a Virginia-based low-income housing provider and three managers with discriminating against a resident with disabilities when they unreasonably delayed her request to install an automatic door opener on her front door to make it easier to use her wheelchair.
According to HUD’s charge, the resident had a physical disability and used a wheelchair for mobility. Based on her physician’s advice, she allegedly asked for permission to install an automatic door opener on the entrance door to her unit and indicated that she had acquired funding for the modification that would cover all expenses to purchase and install the door opener, at no cost to the housing provider. With the request, the resident said she submitted the contact information for the licensed contractor who agreed to install the door opener, a video showing the operation of the opener, and the specifications and installation instructions for the opener. Her physician filled out the community’s form attesting to the resident’s disability-related need for the automatic door opener.
According to the charge, the housing providers denied her reasonable accommodation request for extra time, because of illness, to complete the development’s annual income and family composition certification and evicted her, leaving her without housing. The case will be heard in federal district court.
“For three decades, persons with disabilities have had the right to be granted the accommodations they need to fully enjoy their home, but that right is still too often denied,” Anna María Farías, HUD’s Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD is committed to ensuring that housing providers comply with the nation’s fair housing laws, including fulfilling their obligation to meet the needs of residents with disabilities.”
Reasonable Modification Request—Carpeting Removal
Q: Do we have to consider a resident’s disability-related request to remove carpeting?
A: Yes, according to fair housing officials in New Jersey, who recently announced a $12,500 settlement in a case alleging that a condo association failed to accommodate a resident’s medical disability.
In September 2018, a New Jersey condominium association agreed to pay $12,500 to a resident with multiple allergies to resolve allegations that it failed to accommodate her serious medical condition by denying her request to remove carpet from the condominium she owned.
As part of her request, the resident submitted a letter from her physician verifying that she suffered from multiple food and chemical sensitivities, that she was being treated for the condition, and that removing the carpet from her one-bedroom dwelling in favor of hardwood flooring would help alleviate her allergy symptoms.
Nevertheless, the condo association allegedly denied the request, citing a rule that hardwood flooring wasn’t permitted in one-bedroom units at the community. In addition, the association allegedly insisted that by removing her unit’s carpeting, the resident would be removing an essential sound-deadening buffer between her unit and the dwelling directly beneath hers—despite a letter from the woman’s downstairs neighbor saying she had no objection to the action.
“Under New Jersey’s Law Against Discrimination (LAD), condominium and homeowner associations cannot simply dig in their heels and refuse to bend or grant rule exemptions when approached for an accommodation by residents who have legitimate, medically documented needs such as mobility issues, the need for a service dog or, as was the case in this instance, a significant allergic condition,” New Jersey Attorney General Gurbir S. Grewal said in a statement.
In addition to paying the woman $12,500, the settlement also calls for the association to grant the resident’s request for the reasonable modification of having hardwood floors installed at her expense, though the association may require her to install a sound-dampening underlay made of padding/cork as part of the process.
Reasonable Accommodation Request—Extra Bedroom
Q: Does a public housing authority have to consider a resident’s reasonable accommodation request for an extra bedroom to house exercise equipment?
A: Yes, depending on the circumstances. In recent ruling, a federal appeals court held that a resident could pursue claims against a public housing authority in California for denying him a voucher for a unit with a third bedroom to house his exercise equipment.
The resident was disabled and required use of a wheelchair. He required one bedroom for himself and one for a full-time attendant. He asked for a third bedroom for the purpose of storing large exercise equipment and provided letters from his medical providers that the equipment was medically necessary. A gym wasn’t a practical alternative because, according to one of his doctors, it would take an army of people to get him there and he would have to stop after only 15 minutes; having the equipment in his unit, on the other hand, would allow him to exercise in short intervals throughout the day. The request was denied.
The resident sued the housing authority for denying his reasonable accommodation request, but a court dismissed his complaint, ruling that he didn’t adequately show the connection between his disability and need for the third bedroom.
On appeal, the court reversed and sent the case back for further proceedings. There was no dispute that the housing authority was required to reasonably accommodate the resident’s disability. Given the unique constraints on his ability to access external health facilities, a jury could reasonably find that his requested accommodation was reasonable [Mengistu v. Housing Authority of Los Angeles, California, July 2018].
- Fair Housing Act: 42 USC §3601 et seq.