On January 28, 2020, the U.S. Department of Housing and Urban Development (HUD) published “guidance clarifying how housing providers can comply with the Fair Housing Act when assessing a person’s request to have an animal in housing to provide assistance because of a disability.” The guidance focuses on the type and amount of documentation a housing provider may ask an individual with a disability to provide. According to HUD, the guidance is intended to make it easier for housing providers to determine legitimate requests from illegitimate ones. 

While the guidance applies to both service animals and emotional support animals, this guidance is important for housing providers who are seeing a large increase in the number of tenant requests for emotional support animals. This is likely due to a host of suspicious emotional support animal registries that have popped up over the years, and have contributed to abuse of the system. 

If you regularly deal with requests for emotional support animals, here is the new information you need to know:

  • Housing providers may request information regarding both the disability and the disability-related need for an animal when the individual has a non-observable disability (e.g., depression, anxiety, bipolar, epilepsy, stroke) instead of an observable disability (e.g., blindness, deafness, mobility limitations). However, the housing provider is not entitled to know an individual’s actual diagnosis in either situation. 
  • Documentation from the internet is not, by itself, sufficient to reliably establish that an individual has a non-observable disability or a disability-related need for an assistance animal. However, if an individual is receiving services from a licensed health care professional remotely over the internet, a note from that professional may be considered reliable. 
  • The guidance distinguishes between animals commonly kept in households (e.g., dogs, cats, rabbits, birds, gerbils, etc.) and “unique animals” (e.g., monkeys). If the animal is considered “unique,” a housing provider can request information from a health care professional that confirms the need for the specific animal (e.g., monkey instead of a dog).  

While the new guidance provides some clarity in the law governing emotional support animals, it does not address every scenario faced by housing providers. For instance, the guidance does not address how many emotional support animals a tenant can have. Nor does the guidance address what to do if another tenant is allergic to the emotional support animal. Therefore, housing providers may need to look beyond the new guidance when dealing with a situation that HUD has not addressed.