September 2009

Comfort Pets and Allergies

 

I have a no-pet policy in my building, but recently one of my tenants said he needs a "comfort pet" and had the doctor's note to back it up. I knew I had to allow him to have it, but now I have another tenant (with her own doctor's note!) saying that she has terrible dog allergies, which is one of the reasons she moved into a pet-free building, and that this "comfort pet" is a major discomfort to her. What do I do?

You were correct in allowing the comfort pet as a reasonable accommodation of your pet-free policy. California courts have ruled that comfort animals are "service animals" (comparable to a seeing-eye dog) and thus must be allowed as a reasonable accommodation to a disabled tenant who needs the animal to fully use and enjoy their unit.

So you did the right thing allowing the comfort dog, but now how do you deal with the tenant who suffers from dog allergies? Your question does not specify whether the allergic tenant has requested a reasonable accommodation for her discomfort, or whether she is complaining and simply provided medical support of her complaint. We will assume for purposes of your question that the allergic tenant is making a reasonable accommodation request that the comfort dog be removed from the building.

When researching this question, a few fair housing/disability agencies were contacted for their opinion. As is often the case when dealing with fair housing issues and reasonable accommodation situations, there is never a simple answer. Contacting various fair housing agencies can provide insight on how to proceed. The fair housing agencies heard the scenario, and while they did not provide a clear answer, they framed the problem by asking two questions. First, is the allergic tenant disabled under the eyes of the law, and second, is her request to have the comfort dog removed a reasonable accommodation.

Federal laws define a person with a disability as "Any person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such an impairment. Without more information, it is unclear whether your allergic tenant is technically disabled under the eyes of the law due to her allergies. If she is not disabled, then arguably, she is not entitled to a reasonable accommodation.

The next question to be addressed is whether it is reasonable to request that a disabled persons comfort animal from removed from the building? All agencies contacted made one thing clear: it would not be a reasonable request for anyone to ask that the disabled tenants comfort dog be removed.

Whenever a landlord cannot directly accommodate an accommodation request, it is important that the landlord simply not shut the door on the matter. Instead, you should let the allergic tenant know that you cannot cause the removal of the animal because the dog is allowed as an accommodation for a disabled tenant. Then you should invite the allergic tenant to dialogue as to other suggestions as to how you can alleviate the situation. For example, are her allergies activated when she encounters dog dander in the buildings common areas? Perhaps you can offer to vacuum the common areas more frequently. Is there some sort of other middle ground which can alleviate the situation? Perhaps you can offer another unit in the building which is farther away from the comfort dog. Engaging in communication and making a sincere effort in trying to work out a feasible and reasonable solution with the allergic tenant will benefit you in the long run should the allergic tenant make a discrimination complaint against you. As always, when dealing with the tricky minefield of fair housing and disabilities, it is wise to contact an attorney to discuss your options.

- Marina Franco