Fair Housing Issues Always Hold Surprises: Disability Temporary or Permanent

Just when you thought you knew it all, there is always something more.  Never is this truer than when it comes to Fair Housing.  The temporarily disabled resident is yet another variation of the disabled resident asking for a reasonable accommodation.  Society is often trendy.  A current trend is for every Tom, Dick, and Harry who injures his back playing golf to run out and get handicapped parking credentials.  There is no doubt that the number of temporary handicapped parking permits has increased.  Similarly, the number of temporary disabled residents seeking accommodations has also increased.  Do you have to accommodate residents who are temporarily disabled?

Maybe, but probably not.  The answer depends on whether the temporarily disabled resident is disabled.  Isn’t this an oxymoron? How can you be “disabled” if you are “temporarily disabled?” This makes no sense.  If you are temporarily disabled, how can you by definition be permanently disabled?  The answer is that some temporary disabilities are so severe in nature or duration that legally they are considered permanent disabilities.  Remember in Fair Housing, many rules are not set in stone.  Nowhere is this truer than when it comes to evaluating disability requests.
Let’s review how Fair Housing laws define disability.  Disability means a physical or mental impairment that substantially limits one or more major life activities; a record of having such an impairment; or regarded as having such an impairment.  To begin with, a temporarily disabled resident would have to have a physical or mental impairment.  From here on out, for purposes of our discussion, let’s assume that the resident has a physical or mental impairment.  There are endless examples of temporary resident disabilities (impairments). Pregnancy, broken limbs, sprained joints, concussions, appendicitis, influenza, and obesity are but a few examples.

Assuming a resident has a temporary impairment, the issue now is whether or not the temporary impairment substantially limits a major life activity.  Whether a temporary impairment is significant enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.

The fact that an impairment is considered short-term or temporary is a very strong indication that the impairment does not substantially limit a major life activity.  Impairments of short duration that have no lasting impact are likely to be less serious.  For example, Ronnie Resident is a professional skier.  Ronnie wipes out after blowing a triple helicopter and breaks his leg.  An individual with a broken leg expected to heal normally probably does not have a disability because (1) there is likely no long-term impact, (2) the expected duration of the impairment is likely fairly short, and (3) a broken leg is not considered a serious medical problem.

Why do we say that an individual similar to Ronnie is probably not considered disabled within the meaning of the Fair Housing laws?  Why can’t we say that such an individual is not disabled for sure?  Because when it comes to reasonable accommodations and modifications, each request must be evaluated on a case-by-case basis.  The rules for handling and evaluating requests are certain.  However, there simply are no hard and fast rules that dictate certain requests will be automatically granted all of the time.  Certain types of requests will approach being nearly automatic, but no request is always 100% automatic.  For example, a disabled resident who is confined to a wheelchair and who needs a parking accommodation will almost always be entitled to a parking accommodation.  However, if the community has no parking, or no parking that will accommodate the resident’s request, the community does not have to grant the request.  In addition to the resident being disabled, the resident’s request must be both necessary and reasonable.  If the community has no parking that would meet the resident’s needs, the request is not reasonable because it is neither practical nor feasible.  In other words, the community does not have to build a parking lot if none exists just to accommodate a resident.

Let’s get back to Ronnie’s situation.  Ronnie’s leg is expected to heal normally, but it may not.  Not all broken bones are created equal.  Some fractures are worse than others.  We are not doctors, and neither are you.  Leave the medical predictions to the doctors.  This example illustrates the need to follow proper Fair Housing procedures when handling reasonable accommodation requests.  Because Ronnie’s disability is not obvious, you should ask Ronnie to provide more information (have Ronnie’s medical provider state whether Ronnie’s broken leg makes him disabled within the meaning of the Fair Housing laws).  You can ask for more information if disability or need is not obvious.  For you smart alecks, yes, it’s obvious that Ronnie’s leg is broken.  However, it is not obvious whether his broken leg will substantially affect a major life activity or be of long duration.

The Fair Housing Act (“FHA”), the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and the Colorado Fair Housing Act (“CFHA”) all define disability similarly if not identically.  Under these laws, the term “substantially limits” means (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricts the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.  In determining whether an individual is substantially limited in a major life activity, courts look at the following factors:  the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.  Based on these factors, for an impairment to substantially limit a major life activity, it generally must involve some manifestation of severity, significant duration, or permanence.

Duration of a condition or expected duration is a significant relevant factor in determining whether a person is disabled. Substantial means an impairment must be of ample or considerable amount, quantity, or dimensions, and its effects must be permanent or long-term.  The vast majority of cases have determined that temporary or nonpermanent conditions of a short duration usually fall short of substantially limiting an individual in a major life activity.  Thus, temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, such as brief hospital stays, broken limbs, temporary back problems including sporadic episodes, sprained joints, concussions, appendicitis, pregnancy, and influenza generally do not substantially limit major life activities and for that reason are usually not protected disabilities.  Temporary has been defined by the courts as anywhere from a couple of days to a year and ten months.

Let’s make Ronnie’s situation even more complicated.  Ronnie goes out and gets Colorado state issued handicapped parking credentials.  Does this mean Ronnie is disabled under Fair Housing laws, and thus entitled to an accommodation?  No. The legal requirements for getting handicapped parking credentials are not the same as meeting the definition of being disabled under Fair Housing laws.  Under Colorado law, you are entitled to a handicapped parking permit, temporary or permanent, if you cannot walk without the aid of another person, a dog guide, a dog companion, a walker, a cane, crutches, braces, or who have any disability that would be severely aggravated by walking 150 to 200 feet under normal environmental conditions. Assuming Ronnie’s broken leg will heal normally, Ronnie does not meet the definition of disabled under Fair Housing laws.  Accordingly, Ronnie is not entitled to the accommodation.

Let’s make Ronnie’s situation super complicated.  What if Ronnie gets the permit and just starts parking in a handicapped space, interfering with other disabled residents’ parking habits?  This scenario illustrates the point as to why it is always best to assign a close up reserved space, rather than just installing handicapped parking signs.  If the spaces are assigned, Ronnie cannot park in another disabled resident’s space.  This scenario also illustrates that accommodation requests should always factor in some form of risk analysis.  In other words, while a court will likely determine that Ronnie will prevail, you have to ask yourself if you want to spend thousands of dollars in attorneys’ fees over an issue like this.  Thus, as a practical matter, to avoid a potential dispute and associated legal costs, and to provide quality resident services, we would recommend granting the request as long as Ronnie has valid handicapped credentials.

Regardless of whether Ronnie had handicapped parking credentials or not, Ronnie’s request should be handled like any other request for an accommodation.  You should never automatically assume that temporary disabilities do not fall within Fair Housing laws.  Whether an impairment considered to be temporary substantially limits a major life activity depends on the individual and the impairment. Such determinations are not subject to concrete rules and must be made on a case-by-case basis.  Intermittent impairments require especially diligent evaluation.  Often the disabling aspect of a temporary disability that is not constant is the fact that it flares up unpredictably.

In short, most courts will likely conclude that temporary disabilities are not covered by Fair Housing laws.  Only in rare circumstances will temporary disabilities reach the degree of limitation and expected duration to be substantial.  The minority of courts that have ruled temporary disabilities were covered by anti-discrimination laws applied state statutes rather than federal statutes.  These broader state statutes do not apply in Colorado.  Only federal Fair Housing laws and Colorado Fair Housing laws apply in Colorado.  Thus, in Colorado, you will not often have to grant accommodations for temporary disabilities.  However, you should never summarily deny such requests.  To avoid charges of discrimination over a temporary disability issue, you should always evaluate requests made by temporarily disabled residents in the same manner you evaluate requests made by permanently disabled residents.

View Resource »