Service dogs and comfort animals help individuals with disabilities enjoy a greater quality of life. And it’s up to all of us – including condo associations – to ensure they have equal access to the amenities and services all of us should enjoy.
But it’s clear that the presence of a service animal often gives rise to important questions – not only when it comes to access, but when you consider fairness to other residents and their guests. It’s critical that associations remain compliant with the Americans with Disabilities Act and the Fair Housing Act, and it’s clear that you should avoid situations where you limit access to individuals who are acting within their rights.

“The ADA has many provisions and definitions when it comes to service dogs and guide dogs,” said Phil Pool, vice president of FirstService Residential. “It’s incumbent on us to understand these regulations so we can act fairly for all of our residents and guests.”
The following guidelines are meant to shed some light on service animals and the rights of individuals with disabilities when it comes to your Maryland high-rise community.

1. Service animals are clearly defined.
According to the ADA, only dogs can be designated as service animals. There are more restrictions beyond that qualification –the dog must be trained specifically to perform certain tasks. Examples include guide dogs that assist the blind, dogs who serve alert functions for those who are deaf, dogs that pull wheelchairs for those who are challenged in the area of mobility, canines who remind individuals when to take medication, as well as dogs who calm those who have been diagnosed with Post Traumatic Stress Disorder. The critical distinction is that these animals serve essential functions and are not there to act as pets. That means animals who provide comfort or emotional support do not fulfill ADA requirements for service animals. So if your building prohibits pets, then you may not be obliged to accommodate those animals that are there in that capacity.
2. Assistance animals are also defined.
Whether they are known as emotional support animals, comfort animals, assistance animals or therapy animals, those animals which provide emotional support are becoming more and more common. Airlines, retail businesses and community associations are faced with questions about these animals regularly today.
The FHA requires that community associations and high-rise buildings must make reasonable accommodation for those requesting assistance animals, even if they have a “no pets” policy, just like they must for service dogs. “Association attorneys in the Washington, D.C. area recommend that all buildings follow the letter of the law where the FHA and comfort animals are concerned,” Pool said. “Every association I know of is doing just that.”
So what does the FHA say about assistance animals, also known as comfort animals or therapy animals? They are clear in their definition: “An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person's disability.” While the ADA limits service animals to dogs only, the FHA is more generous with its definition and allows for other animals to provide assistance and emotional support.
2. Exercise care with your questions.  
If you see a resident or a guest with a dog, your immediate inclination is often to ascertain whether this animal is a pet or a service dog. That’s understandable. But inquiring about the difference should be handled with care. In fact, there are only two questions you can ask if the dog’s purpose isn’t obvious:
  • Is the dog a service animal required because of a disability?
  • What work or task does the dog perform?
You are in violation of ADA requirements if you ask about the individual’s specific disability, or if you require any formal medical documentation that justifies the presence of the animal. You are also prohibited to ask for any proof of the animal’s training, or to request a demonstration of the dog’s capabilities.
The FHA outlines similar questions related to comfort animals, in slightly different language:
  • Does the person seeking to use and live with the animal have a disability — i.e., a physical or mental impairment that substantially limits one or more major life activities?
  • Does the person making the request have a disability-related need for an assistance animal? In other words, does the animal work, provide assistance, perform tasks or services for the benefit of a person with a disability, or provide emotional support that alleviates one or more of the identified symptoms or effects of a person's existing disability?
The FHA goes on to say that “If the answer to question (1) or (2) is "no," then the FHAct and Section 504 do not require a modification to a provider's "no pets" policy, and the reasonable accommodation request may be denied.”
The association may require documentation from a physician about the need for the assistance animal, but Pool explained that such documentation is easy to obtain, and can be subject to abuse. “I know of one dog owner whose dog we had issues with. The building allowed dogs – that wasn’t the problem,” he said. “This particular dog figured out to push on the lever-type door handle and let himself out of the unit when his owner was at work, and we’d find him wandering the hallways. He was also a problem barker, from when his owner went to work until she returned home. After a few notices and a couple of fines but no change in the situation, she was told she had to find another home for the dog. And then she brought a letter from a doctor that he was suddenly a comfort animal – which hadn’t come up before – and that ended the discussion.”

3. You can request removal of an animal, but only in limited circumstances. 
The ADA doesn’t mandate that you accommodate all animals at all times. Even if a dog is a bona fide service animal, you can request its removal if its handler does not have control of it. That means the dog must be leashed, tethered or under strict verbal command at all times. Additionally, if the dog is not housebroken, you are not obligated to accommodate it. Otherwise, if the animal is a service or guide dog, you must allow it to stay – even if others are allergic to it. If that instance arises, provide accommodations for both parties – even if it necessitates separate locations. You cannot ask either individual to leave the premises.

4. No fees or deposits may be charged.
Your condo association is prohibited from charging additional fees for a service animal – even if your community does not allow pets. If high-rise communities allow pets but only with the remittance of an additional fee, that fee cannot be charged to owners of service animals. Remember, under ADA stipulations, the animal cannot be classified as a pet. 

5. Some documentation may be required. 
Under no circumstances can your common interest community ask a disabled person for documentation proving their dog is a service animal. However, many states do require that these dogs be registered and licensed.

ADA compliance can be difficult, but remember what you’ve read here and you’ll be able to address most of the confusion when it comes to service animals.
Tuesday February 20, 2018