Condominium and homeowner’s associations are seeing an increase in the number of requests for accommodation of emotional support animals. That has correlated to rising numbers of disability discrimination lawsuits and claims of failure to accommodate. Educated board members know that they must take each request seriously and actively engage in an interactive process to see whether a reasonable accommodation should be granted. But, as a recent federal case from Michigan reminds us, there are limitations to reasonable accommodations.
In Bennett v. Hurley Medical Center, the plaintiff, a nursing intern, brought a claim against the defendant hospital under the Americans with Disabilities Act (ADA) and other laws, asserting that the hospital did not adequately accommodate her request to allow her service dog to accompany her as she made nursing rounds throughout the hospital. The service dog apparently assisted the plaintiff with her panic attacks.
The hospital initially granted Bennett’s request. But, on the very first day of her rounds, the service dog caused severe allergic reactions in a staff member and a patient. After reconsidering the accommodation, the hospital rescinded its approval of Bennet’s request. However, the hospital continued to engage in dialogue with Bennet to determine whether there might be other reasonable options to accommodate the dog, including crating it on another floor or placing the dog in a lycra body suit which might prevent allergens from becoming airborne. However, none of these options came to fruition and Bennet filed suit against the hospital.
In finding for the hospital and dismissing Bennett’s suit, the judge noted the ADA’s provision that it “does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.” The judge also noted the hospital’s thorough, individualized assessment of the accommodation request at all stages of the process, stating “No reasonable jury could dispute that Hurley did conduct an individualized assessment and reasonably concluded that [Bennet’s dog], Pistol, who would have accompanied Bennett to every patient on her rounds with doctors and nurses, was a direct threat to the health and safety of all the patients and staff on 7E and 9E.” In the end, the judge found it would be unreasonable to grant the request that Bennett demanded due to the serious effects on other people at the hospital.
While the ADA is not usually a concern to most community associations unless they open common elements or areas to the general public, this case is instructive because associations regularly deal with accommodation requests under the Fair Housing Act (FHA), and FHA discrimination claims are evaluated by courts along similar lines. The big message here for association boards is that not every accommodation must be granted, particularly where the health and safety of others comes into play. However, before a board makes the decision to deny an accommodation request, it is important that it engage in a thorough analysis of the issue and discuss alternative accommodations.
We also applaud the hospital for engaging counsel in every step of its review, which made it easy for the court to conclude that the hospital was both considerate and reasonable with its decision-making process, including the ultimate denial of the requested accommodation. Similarly, community associations would be wise to engage legal counsel to help determine whether reasonable accommodations should be made and to develop alternative arrangements, where appropriate.