Even during normal times, living with a disability can be lonely and isolating. In a pandemic, losing all forms of in-person interaction due to social distancing can exacerbate feelings of anxiety and depression. For individuals with anxiety, depression, or other mental disability, emotional support animals (ESAs) can be an extremely effective treatment. ESAs provide comfort, relieve stress, and boost physical activity and self-esteem. For some, having an ESA is the only reason they get out of bed every morning.
Fair housing laws protect the rights of individuals to have animals that provide support for their disabilities. The Fair Housing Act makes it unlawful for housing providers to refuse to make reasonable accommodations that persons with disabilities may need to have equal opportunity to enjoy and use their dwellings. It is well established that the request for an assistance animal to provide support for a disability falls within the definition of a reasonable accommodation under fair housing laws. There are two types of assistance animals: (1) service animals, defined under the Americans with Disabilities Act, as “any dog that is individually trained to do work or perform tasks for the befit of an individual with a disability; and (2) “other animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities.  ESAs fall into the latter category. If an animal does not fall into any of these two categories, the animal is a pet for purposes of fair housing laws. Housing providers can create and enforce rules governing tenants' pets at a rental property, including prohibiting pets, if they wish. However, because they are not pets, housing providers may not charge pet deposits for assistance animals, including ESAs.
Often times, individuals with mental or emotional disabilities request ESAs as reasonable accommodations to alleviate the symptoms of their disabilities. Because these disabilities are invisible, housing providers can be reluctant to grant reasonable accommodation requests for ESAs as required under the Fair Housing Act. On January 1, 2020, new fair housing regulations went into effect under the California Fair Employment and Housing Act clarifying housing providers obligations under the laws. On January 28, 2020, the Department of Housing and Urban Development (HUD) also published a notice providing guidance to housing providers on assessing reasonable accommodation requests to keep animals in housing.
With respect to determining whether to grant accommodation requests for ESAs for individuals with invisible disabilities, housing providers may request information regarding an individual’s disability and disability-related need for the animal. However, housing providers are not entitled to know an individual’s diagnosis. New regulations under California’s fair housing law provide that an individual with a disability can confirm their disability-related need for the accommodation in a variety of ways, including by demonstrating receipt of disability-related benefits, providing a credible statement, or through a reliable third party— including medical professionals, health care providers, peer support groups, non-medical service agency or person, or other reliable third party who is in a position to know about the individual’s disability-related need for the accommodation. Before denying a reasonable accommodation request based on the housing provider’s assessment of the individual’s disability-related need, the housing provider should engage in the “interactive process,” or good-faith dialogue with a tenant or prospective tenant regarding their disability-related need for the accommodation.
Individuals with disabilities that believe they are being discriminated against because their housing provider is denying their request for an ESA should contact the Housing Rights Center.
 42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. § 100.204.  See Bhogaita v. Altamonte Heights Condo Ass’n, 765 F.3d 1277, 1287 (11th Cir. 2014); Auburn Woods I Homeowners Ass’n v. Fair Emp’t & Hous. Com., 121 Cal. App. 4th 1578, 1596 (2004).  FHEO Notice: FHEO-2020-01, Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act p. 3 (January 28, 2020), available at https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf (hereinafter referred to as “FHEO-2020-01 Notice”).  California Code of Regulations § 12008 et seq.  Id.  California Code of Regulations § 12178(d); See Joint Statement of the Department of Housing and Urban Development and the Department of Justice [on] Reasonable Accommodations under the Fair Housing Act, n.17 (May 17, 2004).  California Code of Regulations § 12178(e); FHEO-2020-01 Notice p. 9.  California Code of Regulations § 12178(g)  California Code of Regulations § 12177; FHEO-2020-01 Notice p. 14 (January 28, 2020).