Many may recall the recent story about the airline traveler seeking to bring an emotional support peacock (Dexter) on board an airplane.  While the story received much national publicity, the reality appears to be that assistance animals and emotional support animals are becoming more commonplace in everyday life.  Stories such as Dexter’s present some interesting legal questions for non-profits, governments, and businesses alike.

Assistance animals and emotional support animals are sometimes (incorrectly) used interchangeably.  They involve different sources of law and require different analyses.  This next series of posts will seek to provide some clarity on the legal issues relating to both categories.  In part one of this series, we will focus on the legal issues surrounding the Americans with Disabilities Act (“ADA”) and assistance animals for purposes of community associations.  Our next post will address emotional support animals and the federal and state fair housing acts.

The Americans with Disabilities Act

The ADA is a broad federal statutory framework that prohibits discrimination against disabled people in several areas of life such as public accommodations and employment, to name a few.  Most places of public accommodation, such as restaurants and hotels, are aware that they are “covered entities” subject to the provisions of the ADA.  The ADA requires covered entities to make reasonable accommodations to those persons with disabilities.

The terms “reasonable accommodation” and “disability” sound fairly straightforward, however, the case law and administrative guidance create a much more nuanced and complex legal reality.  When presented with a potential ADA situation, the first inquiry is whether the ADA applies to the particular entity in the first place.  The answer to that question is not always clear.

Community Associations May Be Subject to the ADA

Property owners’ and condominium associations (collectively, “Associations”) may think that they are not subject to the ADA because they are not generally open to the public.  It may come as a surprise to some Associations that the provisions of the ADA may apply not only to places open to the public, such as a restaurant, but potentially also to private Associations.  As a result, Associations need to be aware of the basic provisions and potential pitfalls relating to the ADA and assistance animals.  Associations should also consider speaking to their counsel about ADA matters, or seeking counsel experienced with such matters.

What is an “Assistance Animal”?

Only a dog can potentially qualify as an assistance animal under the ADA.  Assistance animals are those that are trained to do work or tasks for the benefit of a person with a disability.  For example, an assistance animal may assist a blind person with walking or help pulling a wheelchair.

Covered entities under the ADA generally must permit assistance animals to accompany people with disabilities in all areas where members of the public may go.  The covered entity may not treat the person with a disability any differently than any other member of the public.  There is an exception to the general requirement to accommodate owners with assistance animals in the event of a threat to health or safety.

Depending on the circumstances surrounding the Association, an Association may well be a covered entity under the ADA.  However, the inquiry is rather fact intensive and requires an analysis of how open the Association is to members of the general public, not just its own owners.

What Should an Association Do if Faced with an Assistance Animal Situation?

Associations may find themselves facing a claim by an owner or guest that their animal is an “assistance animal”, and that they can be accompanied by that animal wherever they go.  Association staff may be overwhelmed with trying to think through how to handle such a situation.  These are complicated issues and there are many misconceptions.  Some may think the dog must be licensed or harnessed.  Others may think the owner must show some sort of training certificate.  However, these things are not in fact required under the ADA.

Labels can also be misleading in these situations.  There are some situations where a claimed “assistance animal” may actually qualify as “emotional support animal”, or vice versa.  As a result there is no single set of “do’s” and “don’ts” for any situation involving an assistance animal.  Each case truly requires an independent and fact-specific analysis.

First, the Association should proceed cautiously in any situation involving a claimed assistance animal.  The Association should avoid making a quick decision on the matter.  The Association should also avoid immediately asking the owner or guest questions about the animal or the claimed disability. There are certain areas of questioning or conversation that are expressly prohibited by the ADA and its accompanying administrative guidance.

Second, the Association should also not make any public statement about assistance animals, either at a meeting or in any other forum.  Statements such as these may act to bind the Association and expose it to potential civil liability under the ADA or Fair Housing Act.

Third, the Association should consult with its legal counsel.  The law is evolving rapidly in these areas, at both the federal and state level.  Advice given just a short time ago may no longer be best practices.  Before refusing to permit an owner or guest to bring an assistance animal onto the Association’s property, it is advisable to inform the Association’s counsel about the situation and get specific advice tailored for the situation.