The spring, summer and fall often bring Cooperative members out into common hallways, areas, and outdoors. With this activity brings the potential for member conflict.
Suppose your Cooperative has a “no pet policy”, but a member has received an accommodation for an assistance animal. As it turns out, that member and animal, usually a long haired dog or cat, live right next door to another member - a member who is allergic to pet dander. They both show up in management’s office and demand the Cooperative take action. What to do?
In addressing such conflicts, it is important to identify exactly what is causing the dispute. Does the assistance animal owner have the animal under control at all times, or is it actually running at large, and this is the real complaint? Or does the member claiming to have allergies simply suffering from a pollen reaction every spring, but claiming it is his or her neighbor’s animal causing the reaction? Management has to get to the bottom of what’s really going on in order to craft a remedy.
Let’s assume the facts are as stated, Member A has an approved dander shedding animal which cases Member B a severe allergic reaction. The first thing to do, is determine who lived in their unit first. The second thing to do, is review the member’s assistant animal paperwork to ensure that the animal that was approved as an accommodation is actually the animal causing the problem. The third thing to undertake is to ask the member with the allergy to provide a physician’s written statement identifying the allergy and indicating whether or not animal dander causes the allergy to become inflamed or threatening.
Generally, federal fair housing law requires a housing provider, in response to a valid assistance animal request, to permit the animal as a valid, reasonable accommodation. There is an exception however, when the specific assistance animal in question poses a direct threat to the health or safety of others, if such threat cannot be reduced or eliminated by another reasonable accommodation.
This means that the housing provider has a duty to reasonably accommodate both members at the same time. How can the housing provider maintain this balancing act?
One option, is to provide the allergic member an air purifier for his or her unit, in an effort to mitigate the effects of animal dander upon his or her health. The members can also be
Attorney Kerry L. Morgan is Of Counsel to Pentiuk, Couvreur & Kobiljak, P.C. Disability law is among one focus of his practice areas. He has extensive experience in advising housing clients in avoiding and resolving ESA issues and development of legally compliant pet and ESA policies. Prior to his current legal affiliation, he served as an Attorney-Advisor with the United States Commission on Civil Rights in Washington, D.C. He also was appointed as the Director of the U.S. Bicentennial Project for Regent University.
directed to use different stairwells or exits which would reduce the likelihood of running into each other in a common area or hallway.
Yet, if these are ineffective and the allergic member suffers or is likely to suffer an allergic attack when the assistance animal is simply on the premises, the housing provider must make alternative arrangements. The housing provider is also under a duty to continue the interactive process with each of its members to determine what might solve the immediate problem.
Generally speaking, the member who signed their occupancy agreement first, enjoys the presumption of continuing on in their unit. The member who comes later, may be offered the opportunity to move to a different unit or perhaps a different building, in an effort to keep the assistance animal away from the allergic member. The member who is prior in time has a preferred position. That is a neutral principle and nondiscriminatory. Housing providers should employ this first-in-time principle in their analysis of accommodation requests where the well-being of two members conflicts with one another.
If, for any reason, this is unworkable, the housing provider must make a hard determination whether or not the assistance animal, with its particular hair length, poses a direct threat to the health of the allergic member. If so, the member with the assistance animal must be advised that, while their accommodation request for an assistance animal remains granted, the particular animal they have chosen poses a direct threat to another member’s health or safety. As such, the assistance animal member must surrender the threatening assistance animal but is free to obtain another assistance animal that does not pose a direct threat to any other member’s health or safety. Bear in mind that the assistance animal owner’s request for an accommodation is not being denied in any way. It is simply to say that the particular animal they have chosen is a direct threat and is inappropriate. The assistance animal owner is free to obtain another animal that serves the assistance animal owner’s needs.
Obviously, this type of conflict is ripe for litigation. Members feel strongly about their animals, as well as strongly about their own health and safety. Housing providers and cooperative management companies should immediately seek legal counsel to assist them in analyzing the various facets of the law and how they apply in specific settings. The discussion here only provides a general outline of options to try and resolve conflicts. It is important that everyone feels they are being heard, but legal counsel is necessary before proposing a member move an animal being declared as unfit.
Housing providers should also note that service animals or service dogs are treated uniquely, and the option to require a service animal owner to surrender their animal is not likely to be supported by the courts. At the end of the day, every accommodation request, whether for an assistance animal or for an allergy free unit, the cooperative requires a fact-specific analysis by housing providers and their attorneys.