A recent internal memo from the Department of Housing and Urban Development (HUD) has sent shockwaves through the housing industry, raising serious questions about the future of Emotional Support Animals (ESAs) in Fair Housing compliance and accommodation requests. We have broken down this major policy shift and the potential ripple effects that housing providers need to understand right now and answer the burning question: Did HUD just do away with Emotional Support Animals?
What was the HUD May 22 Memo?
On May 22nd, HUD issued an internal memo completely changing its stance on emotional support animals. Moving forward, when HUD’s enforcement division (FHEO) investigates Fair Housing complaints, they will only find a Fair Housing Act violation in cases involving trained assistance animals. This means they will no longer find a violation in cases involving untrained emotional support animals (ESAs).
What is HUD’s New Perspective on Assistance Animals?
HUD is attempting to align its stance with the Americans with Disabilities Act (ADA). The ADA only recognizes trained service dogs, not emotional support animals. By incorporating a training requirement into the definition of “assistance animal” under the Fair Housing Act, HUD is signaling a preference to follow the ADA’s narrower scope. It’s important to note, however, that the new FHA approach will not limit animals to just dogs, unlike the ADA.
Does this mean that housing providers can immediately stop approving ESA requests?
Not necessarily. Given the multiple “grey areas,” we strongly advise consulting an attorney before making any immediate changes to accommodation policies. While the HUD memo signals a shift in federal prosecution, there are two major risk areas that remain:
- State Law Violations: Most states have laws that explicitly recognize emotional support animals as a reasonable accommodation. Refusing to approve an ESA without a legitimate reason could lead to a violation of state law, which is just as serious as violating the federal FHA.
- Case Law Precedent: If a resident files a lawsuit, state or federal courts are not required to rely solely on an agency memo. Most current case law precedent still recognizes a resident’s right to have an ESA as a reasonable accommodation.
What Are HUD’s Next Steps Regarding Assistance Animals?
Currently, the memo is all that exists, but HUD has stated its intent to create a new regulation addressing requests for assistance animals. This forthcoming regulation will hopefully provide clarity on what this policy change will look like when it is officially incorporated into company policies. Until then, housing providers must proceed cautiously, balancing the new federal guidance with existing state laws and case law precedent.
To help navigate this challenging new understanding, we have created a quick Q&A downloadable document that you can share with your team members to help you stay fair housing-focused while providing excellent care to your residents.