Hi Everyone!

One of the most common questions that people, especially landlords, have is about Emotional Support Animals (ESAs). There are new laws that define ESAs in Wisconsin, and establish rules about what landlords’ responsibilities (2017 Wis. Act 317, and you can find the summary here). 

But there's a problem: We see some really big clashes between the new Wisconsin laws and federal Fair Housing laws. Generally, states can't take away rights given by federal mandates. And so, it looks like some of these new laws might be giant traps for landlords to fall into - even if landlords carefully follow the new Wisconsin laws about ESAs, they might find themselves in violation of federal law, which is a huge, expensive, problem.

What is an Emotional Support Animal (ESA)?

An Emotional Support Animal is defined by Wis. Stat. 106.50(1m)(im) as "an animal that provides emotional support, well-being, comfort, or companionship for an individual but that is not trained to perform tasks for the benefit of an individual with a disability." (This is consistent with, but not identical to, federal law. An inflexibly close reading of this definition might put someone in violation of federal law.)

When can a tenant request an ESA?

In order for a tenant to request an assistance/service animal as an accommodation for a disability, the animal must be necessary to afford the individual an equal opportunity to use and enjoy a dwelling or to participate in the housing service or program. Further, there must be a relationship between the individual’s disability and the accommodation the animal provides. If these requirements are met, a housing provider must permit the assistance animal as an accommodation.

Landlords may request documentation:

A landlord cannot require an individual to:

• reveal what kind of disability they have, or what disability is treated by the companion/service animal (Tenants are protected by HIPPA, which does not require the tenant or the health professional to disclose the nature of their disability or other medical details. Wis. Stats. 106.50(2r)(bg)2. & (1m)(mx), 2017 Wis. Act 317, Secs. 29 & 30)
• require that the tenant/prospective tenant prove the animal has been specifically trained

Landlords can request two pieces of formal documentation:

1. Confirmation that the individual has a disability. State law states that if the disability is immediately apparent, a landlord may not request any disability related information. 
2. Confirmation that the animal is necessary to treat a medical condition or a disability.

Who can provide documentation for animals?

Federal and State laws disagree on the type of documentation required for emotional service animals. Wisconsin laws require the documentation related to the disability-related need for an emotional support animal to come from a licensed health professional, defined as “a physician, psychologist, social worker or other health professional” who is licensed or certified in Wisconsin and is acting within the scope of their license or certification. 

On the other hand, federal law requires the person with a disability must provide "reliable documentation." ("Housing providers may ask individuals who have disabilities that are not readily apparent or known to the provider to submit reliable documentation of a disability and their disability-related need for an assistance animal," from FHEO 2013-01). Since Wisconsin law imposes a stricter requirement for documentation than federal law, landlords who require documentation from Wisconsin licensed health professionals may be liable for violating federal law. 

An imagined example: a tenant is moving to Wisconsin from Minnesota. The tenant is a veteran, and is coping with PTSD. The tenant has an emotional support animal, who helps the vet cope with flashbacks and anxiety. The tenant has a doctor's note, from a licensed physician in Minnesota, which explains that the tenant has a disability (it's not visible, so landlords often need documentation), and that the specific animal is necessary to treat the disability. However, upon moving to Wisconsin, he is denied because his letter isn't from a physician licensed in Wisconsin. The tenant files a complaint with HUD, HUD asserts that a Minnesota doctor can give "reliable documentation" for a tenant in Wisconsin, HUD finds the landlord in violation of federal fair housing law, and leverages a maximum first-time fine of $19,787. The landlord has followed Wisconsin law, but can still be held to (and fined by) more open-ended federal law.

Animals can be denied in specific circumstances:

Under Federal law, a landlord can deny a service or companion animal:

• If the landlord lives in the unit, and they or a member of their immediate family have an allergy to the animal.
• If that specific animal has aggressively threatened someone. (This must be the specific animal in question, and not based on beliefs about behavior from that breed, size, etc.)

On the state level, there are few circumstances in which a landlord is allowed to deny a service animal or emotional support animal. Those circumstances (listed in Wis. Stat. 106.50(2r)(br)4) are:

1. The applicant does not have a disability, or does not have a disability-related need for the animal. 
2. The tenant fails to provide requested documentation allowed by law
3. The service animal or emotional support animal would impose an undue financial or administrative burden that would fundamentally alter the nature of the housing program or services. The specific animal poses a direct threat to the health or safety of a person, that cannot be reduced by another reasonable accommodation. 
4. The specific animal would cause substantial physical damage to a person's property that cannot be reduced by another reasonable accommodation. 

Charging for Damages:

A landlord is able to charge a tenant for damages done by their ESA or service animal. Wis. Stat. 106.50(2r)(bg)3.

Information for Tenants:

We understand that various housing laws can make it difficult for tenants to navigate accommodations and create additional barriers for people with disabilities. Tenant Resource Center aims to provide you with all the necessary information and resources to advocate for your housing needs. Here are some commonly asked questions regarding emotional support animals: 

Should I tell a prospective landlord about my ESA when I'm applying for a rental home? Laws do not require tenants to disclose ESAs or service animals when applying for housing. It is helpful to tell your landlord that you have an ESA or service animal before you move in. So that if they have a legal reason to deny your ESA, you can work out those reasons or find different housing. Here's a possible series of steps you might follow when applying for housing with an ESA::

• Apply for housing, without mentioning your animal. 
• Once you have proof (preferably in writing) that you're accepted into the rental home and not denied for other legal reasons, send the landlord a letter saying that you have an ESA, with your documentation.
• If you are denied at that point, you could reach out to the landlord asking for the reason for the denial or contact the following agencies for support
  • U.S. Dept. of Housing and Urban Development (HUD). HUD has publications available about fair housing and can direct you to your local fair housing office.
  • Fair Housing Centers.
  • In Dane County, for more information about service or companion animals, call Access to Independence.
  • Disability Rights Wisconsin is a statewide organization that provides information about the legal rights of persons with disabilities. 
  • Your local Aging and Disability Resource Center.

My landlord wants more information than the documentation you list above. Should I give it to them? You do not have to provide additional information, however, you certainly can. Landlords cannot deny your request if you didn’t provide additional information. You are also not liable based on discrimination laws if you choose to give them more information.

Do I need to pay a pet security deposit or rent for my ESA? No, landlords may not charge the tenant extra pet fees for a service animal or emotional support animal since they are considered medical equipment needed for accommodation. Additionally, landlords cannot apply other pet policies like breed or weight restrictions to service or emotional support animals. 

Should I pay to register my ESA online? No. An ESA registry is a website that asks for money to confirm that you have a registered emotional support animal. This is not required by law and is not, in any way, a replacement for the "reliable documentation" needed to receive accommodation under federal law. If any company or website states that registration is required, they are usually a scam and should not be trusted.

Information for Landlords:

Things you can do, if you're concerned about a tenant's ESA:

• Check the credentials of the person who provided the "reliable documentation," and call to make sure they exist. (They will not be able to tell you whether or not they treat the disabled person in question, since that would be a violation of HIPAA laws). The service provider would likely be able to tell you if they wrote the letter that you are holding. 
• Require all tenants (not just those with ESAs or service animals) to have renter's insurance, if you're concerned about your liability. (Note: if you have a renter's insurance rule, but it's only for folks with ESAs or service animals, that's discriminatory.)
• Contact resources! Fair Housing wants to help landlords follow laws, and you can always contact an attorney for legal advice. If you are denied insurance because of an ESA, then those insurance companies could be fined for violations of fair housing laws, as well. So, again, ask for help! Denying an ESA or service animal because of another organization's discrimination (as opposed to your own discrimination) does not protect you.

Generally speaking, though, it's hard to deny ESAs without facing allegations of discrimination.

A Note on Names:

Emotional Support Animals, Service Animals, companion animals are all names that people use to refer to the animals that help people with disabilities in their day-to-day life. However, they aren't all the same thing. Under the Americans with Disabilities Act, a service animal is defined as "any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability." (Note: later on, they tack on miniature horses, so those are technically service animals, as well.) An ESA or companion animal doesn't have to have specific training.

However, the difference between ESAs and service animals isn't relevant for these conversations about ESAs in rental housing. Both service animals and ESAs count as reasonable accommodations for a disability within fair housing law. Therefore, no matter what you call the animal - a companion animal, a service animal, an emotional support animal, among other names - the animal is allowed, as long as: the tenant has a disability, the animal is necessary to treat the disability, as confirmed by reliable documentation.

Resources:

• the Fair Housing Council
• If you're in the City of Madison, you can contact the Dept. of Civil Rights for help, and file complaints through them, as well. 
• Wisconsin's Equal Rights Division
• HUD's complaint procedure
• More information on discrimination is available on our discrimination page

* Hi! Did you know that we are not attorneys here at the TRC?  And this isn't legal advice, either.  If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.