Beaumont Tashjian Law Blog

Monday, December 6, 2021

New Law for Emotional Support Animals & How it Affects Reasonable Accommodation Requests

According to the American Veterinary Medical Association, approximately 48 million households own at least one dog. Other estimates go as high as sixty-eight percent (68%) of all American households. The Insurance Information Institute estimates that thirty percent (30%) of Americans adopted a pet during the pandemic. Wherever the final tally falls, pet ownership is clearly woven into the fabric of community association living—and so are pet restrictions. 

Although pet restrictions, such as number and size limitations, are common and often considered a positive instrument to keep property values up, associations may have a legal duty to allow an owner to keep emotional support animals, even if in violation of the CC&Rs. Both the federal Fair Housing Act (“FHA”) and California Fair Employment and Housing Act (“FEHA”) require homeowners’ associations to make reasonable accommodations for people with disabilities. For example, the governing documents may have a thirty-five (35) pound limit on all dogs within the association, but a resident may ask for an exception to the rule in order to accommodate their fifty (50) pound dog which provides emotional, cognitive or other therapeutic support. 
 
Unlike service animals, which are trained to perform a particular task for a disabled person, such as guiding individuals with impaired vision, alerting individuals with impaired hearing, fetching dropped items, etc., emotional support animals do not need to be specifically trained. Naturally, this has opened up the door for farcical emotional support animal claims and requests for reasonable accommodations (we’ve all seen images of people walking through airports with their “emotional support” peacocks, snakes and even lobsters!). 

As far as emotional support dogs are concerned, the Governor signed into law Assembly Bill 468 (“AB 468”), which now places more strict requirements on pet owners looking to obtain emotional support certification for their canines. Existing law allows boards to request written verification from the resident’s treating healthcare practitioner/professional or other reliable third party who is in a position to know about the individual’s disability, that the person suffers from a certified disability for which they are requesting an exception to the association’s pet rules. The problem was, many owners had an out-of-state “friend” with a questionable medical background provide a written statement, and boards were somewhat expected to take them at face value given the sensitive nature of these requests.

AB 468 now requires a healthcare practitioner who provides documentation related to the person’s need for an emotional support dog to comply with each of the following criteria:

  • Possesses a valid, active license and includes the effective date, license number, jurisdiction, and type of professional license in the documentation.
  • Is licensed to provide professional services within the scope of the license in the jurisdiction in which the documentation is provided.
  • Establishes a client-provider relationship with the individual for at least 30 days prior to providing the documentation requested regarding the individual’s need for an emotional support dog.
  • Completes a clinical evaluation of the individual regarding the need for an emotional support dog.
  • Provides a verbal or written notice to the individual that knowingly and fraudulently representing oneself to be the owner or trainer of any canine licensed as, to be qualified as, or identified as, a guide, signal, or service dog is a misdemeanor violation of Section 365.7 of the Penal Code.

Now, boards may scrutinize reasonable accommodation requests that involve emotional support dogs a bit more closely. The above criteria set standards for an owner’s reasonable accommodation request and the documentation that they must provide to support it. 

To ensure compliance with federal and state law, associations should always remain sensitive to the rights of a disabled person. Pet restrictions in your CC&Rs may be enforced to the extent that the rights of the individual are not infringed upon. Whenever reasonable accommodation requests are made by a resident, associations have the right to ask for supporting documentation, but such requests should be handled carefully given the inherent sensitivity of these issues. 

Boards and managers should consult with legal counsel when unsure of how to process these requests and what can/should be asked of the resident. Another helpful tool is a reasonable accommodation policy, which outlines precisely what information the board requires of any resident who is requesting a variance to the association’s pet rules. If a policy has already been adopted, it’s critical to revise it to reflect these changes in the law. This will set expectations early and also help community leaders feel confident when handling these delicate issues.


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