The Many Hats Of A Cooperative
Housing providers such as cooperatives, wear many hats. They may be employers and have employees. They provide housing to their members. Their business offices may also be open to the general public to answer questions and receive applications. What happens when a disabled person asks for an accommodation? They may want a designated parking space for their disability. They may want an assistance animal for their disability. Is the person an employee, a member, or simply a member of the public? The answers to these questions will decide what laws apply and guide the cooperative along the way toward successful compliance.
The Cooperative: Employer, Housing Provider, or Place Of Public Accommodation?
In the housing cooperative setting, a member may seek to have an animal such as a dog qualify as an assistance animal, whether as an emotional support animal or a service animal, either legitimately or to circumvent a “no pet” policy. The member typically asserts a disability along with a physician’s letter stating that the individual needs the animal as an assistance animal. In the cooperative housing setting, the housing provider, like a cooperative board, must accommodate that request and permit the member to possess an animal but can also require the animal to be subject to the reasonable rules and regulations governing animals and pets with some notable exceptions regarding fees.
Moreover, the cooperative, if it has 15 or more employees, could receive a request by an employee to provide a job accommodation so the employee doesn’t have to perform all the job functions according to his or her job description. In such a case, the employer can require the employee to perform the essential job functions and do so with or without an accommodation.
Likewise, the cooperative could be a place of public accommodation if it’s business offices are open to members of the public who seek more information about the cooperative or wish to visit the cooperative. Perhaps they want to bring a service dog or a miniature horse onto the property while they make those inquiries. Typically, the only questions that can be asked are: 1) Is the animal required because of a disability? 2) What work or task has the animal been individually trained to perform? Asking any other questions or demanding documentation is prohibited.
While the accommodation obligations in all these situations seem to be the same, they are controlled by different laws. It is important to keep these laws separate. Let’s look at the two major laws, the Americans with Disability Act (ADA) and the Fair Housing Act (FHA) to understand more clearly which applies in which situation.
Americans with Disabilities Act
Title I of the Americans with Disabilities Act of 1990 (ADA) prohibits private employers, State and local governmental employers, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA applies to cooperatives as employers. Thus, its employees are covered by the ADA if the cooperative has at least 15 employees. When faced with accommodation requests by disabled employees the ADA controls. The fair housing act on the other hand has nothing to do with an employee request for a disability accommodation.
Title II of the ADA requires state/local governments to give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities. The ADA also includes specific requirements for state/local governments that include allowing service animals to be with their person even if there is a no pet policy.
Title III of the ADA covers nondiscrimination on the basis of disability by public accommodations and in commercial facilities. This is the public library scenario mentioned above.
Fair Housing Act
The Fair Housing Act is different. As a housing provider, cooperatives are governed by the Fair Housing Act, not the ADA. Section 504 of the Rehabilitation Act of 1973 may also apply if the cooperative receives financial assistance from any Federal department or agency, including HUD.
The Fair Housing Act requires a housing provider to allow a reasonable accommodation involving an assistance animal (meaning service animals and emotional support animals) in situations that meet the following conditions:
A request was made to the housing provider by or for a person with a disability
The request was supported by reliable disability-related information, if the disability and the disability-related need for the animal were not apparent and the housing provider requested such information, and
The housing provider has not demonstrated that:
Granting the request would impose an undue financial and administrative burden on the housing provider
The request would fundamentally alter the essential nature of the housing provider’s operations
The specific assistance animal in question would pose a direct threat to the health or safety of others despite any other reasonable accommodations that could eliminate or reduce the threat
The request would result in significant physical damage to the property of others despite any other reasonable accommodation that could eliminate or reduce the physical damage.
ADA or FHA?
Thus, when faced with a request for accommodation by its members on the basis of a disability, the FHA applies. Moreover, the FHA applies when its members request a designated parking space because of their disability. The cooperative is under an obligation to investigate the request and, if justified, provide a reserved parking space reasonably closest to the front door of the member’s unit. Again, the FHA applies to these types of accommodation requests.
The ADA does not apply to a member’s disability accommodation request. However, if a guest or person seeking information about the cooperative or membership drives their vehicle to the cooperative office and complains in the process that there is no disability designated parking space, then the ADA will come into play and control only that portion of the cooperative that is open to the public, which is typically the business office or the rental office where new applications are received. But that is the exception to the rule. Typically, cooperative member accommodations requests are governed by the FHA with the above exception noted, and cooperative employees are governed by the ADA.
In summary, the cooperative must understand what hat it’s wearing in what context. If it’s acting as a cooperative with regard to a member disability accommodation request for a handicap parking spot or an emotional support animal or a service animal, then the FHA applies. If it’s operating as an employer, then with its employees the ADA applies assuming they have at least 15 employees. If the cooperative is acting as a place of public accommodation and the public comes onto the property and the potential applicant or interested public wants to bring an assistance animal or needs a disability parking space, then the ADA controls those questions.
It’s sometimes the case that attorneys who don’t know the difference write demand letters to cooperatives on behalf of their clients mistakenly asserting claims and damages under the ADA. Boards shouldn’t assume that attorneys making such claims really understand the law as the nuances can be confusing. Obviously, there’s a certain level of sophistication involved here and when in doubt, cooperative boards should consult legal counsel of their own. They should determine if an “employee accommodation” is at issue, or a “member accommodation” is at issue, or a “public accommodation” is at issue. This will help sort out which law applies and avoid confusion.
Attorney Kerry L. Morgan is Of Counsel to Pentiuk, Couvreur & Kobiljak, P.C. He has extensive experience in advising housing clients in connection with employer regulations. 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.