Reasonable Accommodations for Service and Assistance Animals

By Kyle Cirac

Animals are not always welcomed by business owners and landlords with open arms.  Animals can destroy businesses and rental properties by chewing or scratching, disturb other patrons or tenants by barking, growling, biting, or intimidating, and cause health hazards if they are not vaccinated or if their owner fails to clean up their waste.  Even if a business posts signs prohibiting animals or a rental agreement does not allow a tenant to keep an animal, there are certain laws that patrons or tenants may use to obtain permission to keep an animal.

There are two different classifications of animals that business owners and landlords may be required to permit.  The Americans with Disabilities Act (ADA) allows service animals and the Fair Housing Act (FHA) allows assistance animals as reasonable accommodations.  Business owners and landlords must consider whether to grant a request to allow such an animal on a case by case basis.

The ADA applies to places of public accommodation, which may include hotels, restaurants, theaters, retail stores, or any other place listed in 42 U.S.C. §12181(7).  Under the ADA, business owners must make reasonable accommodations for people with a disability (42 U.S.C. §12182(b)(2)(A)(ii)).  As an example, a restaurant owner may be required to allow service animals inside their place of business.

The Department of Justice defines a service animal as a dog that has been individually trained to do work or perform tasks which are directly related to a person’s disability.  The ADA defines a disability as: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment (28 C.F.R. §36.105).  As an example, blindness would qualify as a disability because it impairs a major life activity.  Furthermore, a blind person who uses a dog to alert them of oncoming traffic would qualify as an appropriate use of a service animal under the ADA.  However, there is no requirement that the dog be professionally trained, so long as the service it provides is directly related to the disability.  The Nevada Revised Statutes expands the definition to include miniature horses (NRS 426.097).

A place of public accommodation is required to allow service animals into their place of business.  When a customer enters with a dog that is clearly a service dog (i.e., the dog is pulling a person’s wheelchair), the business may not question the individual regarding their dog.  If it is not clear that the dog is a service animal, the business owner or employee may only ask: (1) whether the animal is a service animal or service animal in training; and (2) what tasks the animal is trained to perform or being trained to perform (NRS 651.075(2)(a)).  Employees of the business may not request any sort of proof of a disability or documentation that the animal is trained or licensed to perform specific tasks.  Individuals with disabilities who are accompanied by service animals may not be charged additional fees, isolated from other patrons, or treated less favorably than other patrons.

The business may ask for the animal to be removed if: (1) the animal is out of control and the animal’s handler does not take action; or (2) the animal is not housebroken (28 C.F.R. §36.302(c)(2)).  Nevada law includes another circumstance when the animal poses a direct threat to the health or safety of others (NRS 651.075(2)(b)).  In a 2013 notice from the Department of Housing and Urban Development (HUD), the direct threat circumstance was included.  Federal law does not require a place of public accommodation to permit an individual if their presence poses a direct threat to the health and safety of others (28 C.F.R. §36.208).  If the service animal has been removed from the premises as a result of one of these situations, the disabled person must be given the opportunity to obtain goods, services, or accommodations without the animal present (28 C.F.R. §36.302(c)(3)).

The Fair Housing Act (FHA) is a federal law that protects tenants from being discriminated against by landlords.  Under the FHA, a housing provider may not discriminate against a tenant or prospective tenant by refusing to make a reasonable accommodation if the change is necessary to allow a handicapped person the full use and enjoyment of a dwelling (42 U.S.C. §3604(f)(3)(B)).  The FHA defines a handicap in the same manner that the ADA defines a disability (42 U.S.C. §3602(h)).

In several cases, a reasonable accommodation may include allowing the tenant to keep an assistance animal.  An assistance animal may be referred to by different names, including a service, companion, emotional support, therapy, or comfort animal.  Assistance animals may include dogs, cats, birds, fish, or any other type of animal.  Tenants are not required to use a specific form, but it is advisable to keep a written record of any requests for reasonable accommodation.

When a tenant or prospective tenant makes a request to allow an assistance animal, the landlord should determine whether granting the request is necessary as a reasonable accommodation.  A landlord should only ask for verification of a tenant’s disability if it is not readily observable.  If a landlord does ask for verification, they may only ask whether the person is disabled and whether an accommodation is required because of the disability.  The landlord may not enquire as to the nature of the tenant’s disability.  The verification does not have to come from a doctor or a medical professional.  The only requirements are that the person verifying the disability must be a third party (not an interested family member) and that they are familiar with the requester’s disability.

If the request for an accommodation is granted, the animal must still comply with rules and regulations listed in the rental agreement.  Many landlords require a separate pet agreement which explains the rules regarding pets, including behavior, supervision, and hygiene.  Service and assistance animals are not considered pets.  Instead of requiring persons with service or assistance animals to sign a pet agreement, it is advisable to have a separate agreement requiring compliance with certain rules regarding the animal.  If the tenant violates the service or assistance animal agreement by refusing to vaccinate the animal, allowing the animal to bark incessantly, or failing to dispose of the pet’s waste, the tenant may be required to remove the animal.

While service and assistance animals must comply with the rules, landlords may not charge a pet deposit or other pet-related fees for an assistance animal.  However, the tenant may be financially responsible for any damage that the animal causes to the property.

In evaluating whether to allow a service or assistance animal, remember that you should only seek to verify the disability if it is not readily observable and that any uninterested party may verify the disability-related need for an accommodation so long as they are familiar with the tenant’s disability.  If you are unsure whether you must grant a request for a reasonable accommodation, or if you need help drafting an agreement for assistance animals that complies with the FHA, contact a lawyer to discuss your obligations.

* The foregoing information is of a general nature.  Landlords and tenants should contact their legal counsel with questions for advice concerning specific situations.