For many individuals with a disability or other debilitating condition, a service animal or assistance animal is essential to performing life’s daily tasks. But what happens when the presence of an assistance animal conflicts with the policies of your New Jersey high-rise association?
The short answer is that, if a service animal is compliant with the definitions and provisions set forth by the Americans with Disabilities Act (ADA) or the federal Fair Housing Act (FHA), then high-rise communities are not allowed to prohibit it. But it’s often not that simple.
“There are many qualifications and provisions within the ADA’s definition of what constitutes a service animal, and what accommodations must be made for it,” said Cyndy Pirrera, vice president, high-rise at FirstService Residential. “The more you know, the more likely you’ll be able to ensure a fair environment for all of your residents and guests.”
So let’s take a look at some of the service animal and comfort provisions that may affect your high-rise – regardless of its pet policy.
1. Know the definition of a service animal.
First off, the ADA states that only a dog can be designated a service animal. And within that definition, the canine must be trained to specifically perform certain tasks in order to qualify for the designation. This includes guide dogs who assist the blind, alert dogs who support the deaf, and dogs that pull wheelchairs, remind a person when to take their medication, calm an individual with PTSD or complete other tasks. These dogs are there to perform a specific function, not to act as pets. If an animal’s sole function is to be there for comfort or emotional support, then they do not qualify as “service animals” under the ADA’s provisions. The New Jersey Law Against Discrimination (LAD), however, requires common interest communities provide “reasonable accommodation” for an occupant prescribed an emotional support, therapy or assistance animal.
2. Understand the laws around comfort animals. 
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. 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. The FHA also prohibits restrictions on size, breed and weight.
Jim Felekos is the FirstService Residential general manager of a community made up of 14 mid-rise buildings on a 27-acre campus on New Jersey’s Gold Coast. “We’ve definitely seen an interest in people asserting that animals, mostly dogs and a few cats, are emotional support animals,” Felekos said. “These aren’t new animals or exotic pets being brought onto the property, like the peacocks or goats people are trying to take on planes. Our community is pet-friendly, and what we are seeing is that someone’s pet becomes a nuisance, perhaps through excessive barking, and the owner gets them declared an assistance animal. As long as they have the proper documentation, there’s nothing more to do.”

3. Know what you can ask.
So how do you know if a dog is there as a pet, or as a working service animal? If the dog’s purpose is not obvious, there are only two questions you can pose:
Is the dog a service animal required because of a disability? 
What work or task does the dog perform?
Staff members are prohibited from inquiring about the individual’s specific disability or requiring any kind of medical documentation or paperwork that proves the dog has undergone service animal training. You are also not allowed to ask that the dog prove its capabilities through a demonstration. Your property management company can help in training your building’s staff to be sensitive to this type of inquiry.
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.

4. Know the limitations.
There are a few very specific instances where you can request that a service animal be removed from the premises. The first is if the handler does not have control of the animal. That means the dog or other animal must be leashed, tethered or under strict verbal or non-verbal commands at all times. The second is if the animal is not housebroken. Otherwise, the animal must be accommodated – even if other people in the area have allergies or a fear of the animal. In those instances, both parties must be accommodated for, perhaps in separate locations. Neither individual can be asked to leave.

Felekos is concerned about the increase in numbers of animals being identified as emotional support, assistance or comfort animals. “Residents who try to find the loopholes in the rules for reasons other than a genuine need are eventually going to diminish the ability of those who have that need to be accommodated and to get exceptions to association policy,” he said. “As the people are seeing on the airlines, there will be a backlash eventually. We need to be able to uphold the ability to accommodate those people in need while not allowing people to use that loophole to bring in an otherwise prohibited or nuisance animal.”

5. Know the specifics.
Common interest communities, buildings and condo associations aren’t allowed to treat residents or guests who have service animals or comfort animals any differently than other guests or residents. That means the association can’t charge any additional fees above those residents or owners without animals are charged. Even if your association does allow pets, but charges an additional pet fee, the disabled individual cannot be charged that fee – remember, a service animal or comfort animal is not a pet.

6. Know the documentation required.
Remember, you’re not allowed to ask a disabled person who needs the support of a guide or service animal for any sort of documentation identifying the animal as such. Most states, however, still require the dog to be registered and licensed, just as pet dogs are.

There can often be confusion and misconceptions surrounding service dogs and how they should be accommodated in your New Jersey high-rise. A good professional property management company can assist in clearing up some of the confusion amongst the residents in your building.
Thursday February 15, 2018