Assistance Animals Revisited: Recent Guidance — Recent Regulations
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pril is Fair Housing Month, during which we will mark the 54th anniversary of the passage of the federal Fair Housing Act (FHA). The law being over a half-century old does not mean that its interpretation and application does not continue to evolve. The FHA has been amended twice; once in 1974 and again in 1988. Later this year will come the 34th anniversary of those 1988 amendments to the FHA that added provisions to ensure equal, or at least improved, access to housing for people with disabilities. Just as with other aspects of law, when it comes to the FHA’s disability-specific provisions, their interpretation and application are not static. Evidence of that fact is shown by the U.S. Department of Housing and Urban Development’s Office of Fair Housing and Equal Opportunity’s (FHEO) issuance of updated guidance on assistance animals on January 28th 2020. That update came just 4 weeks after the introduction of California’s first fair housing regulations, which can be found in Title 2 of the California Code of Regulations (CCR), starting at section 12005. That January 2020 introduction of regulations was the first phase of developing comprehensive regulations that will eventually address most aspects of fair housing law. Among the topics addressed in the first phase is that of assistance animals. Because it has been six years since our agency last authored an article on assistance animals, and because issues
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Apartment News
with assistance animals are prevalent in fair housing matters, it is a good time to both cover these more recent developments and to review some of the general aspects of the topic. By way of a reminder, it’s important to point out that while the Americans with Disabilities Act (ADA) is perhaps a more widely-known law addressing rights for people with disabilities, when it comes to housing it is the disabilityspecific provisions of the FHA and not the ADA that are the applicable law. Also, as part of revisiting the topic of assistance animals and in order to have an appropriate understanding of terminology, it is good to present some definitions that appear either as part of California’s Fair Employment and Housing Act (FEHA) or the new California regulations. First, disability is defined in FEHA as a physical or mental impairment that limits one or more of a person’s major life activities. Major life activities are broadly construed and include numerous physical, mental, and social activities and working. Disability also includes a record of having such an impairment or being regarded as having such an impairment. Overall, this is a somewhat broader definition than the federal one, which uses the words ‘substantially limits’. Second, the new regulations define an assistance animal as including both service animals and support animals, and makes clear that an assistance animal is not a pet. Rather, “[i]t is an animal that
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April 2022
BY DAVID LEVY, PROGRAMS SPECIALIST, FAIR HOUSING COUNCIL OF ORANGE COUNTY
works, provides assistance, or performs tasks for the benefit of an individual with a disability, or provides emotional, cognitive, or similar support that alleviates one or more identified symptoms or effects of an individual’s disability” [See 2 CCR §12005(d)]. The regulations go on define service animals as those that “are trained to perform specific tasks to assist individuals with disabilities, including individuals with mental health disabilities. Service animals do not need to be professionally trained or certified, but may be trained by the individual with a disability or another individual.” They describe some specific examples of service animals, and make clear that they include animals in training, whether being trained by individuals with disabilities, persons assisting individuals with disabilities, or authorized trainers. They also define support animals as those “that provide emotional, cognitive, or other similar support to an individual with a disability. A support animal does not need to be trained or certified. Support animals are also known as comfort animals or emotional support animals.” Recall that a request by a housing occupant for permission to have an assistance animal is part of the broader concept of various requests for a reasonable accommodation of a person’s disability. Fair housing law makes it unlawful for a housing provider to refuse to make an accommodation that Assistance Animals — continued on page 18
