In this space and elsewhere, the terms “disability” or “handicap” are often used in identifying certain individuals who are included in a protected class. Do they mean the same thing? Something different? While the Fair Housing Act (FHA) defines the word “handicap,” the Americans with Disabilities Act (ADA) defines the word “disability.” At least one Supreme Court case has noted that the definition of “disability” in the ADA is almost verbatim from the definition of “handicap” in the FHA. In practice, the two words have the same legal meaning. To be sure, “disability” is used more often today and would be considered more generally accepted.
So, just what is the definition of “disability” or “handicap” in our FHA world? Any person who has a physical or mental impairment that substantially limits one of more major life activity, has a record of such an impairment, or is regarded as having such an impairment. Typical (but not an exhaustive list of) major life activities include: seeing, walking, learning, performing manual tasks, hearing, breathing, or speaking.
Now, the definition of disability (such that management does not have to provide a reasonable accommodation or reasonable modification) specifically does not include: (a) current drug use or alcohol abuse; or (b) individuals who pose a direct threat to health and/or safety.
In the real world, of course, certain disabilities are obvious and management needs no medical documentation. For other conditions, however, it is absolutely appropriate for management to seek limited medical confirmation that a resident (or applicant) has a recognized disability and that there is a nexus (or connection) between the specific disability and the requested accommodation/modification. While there is no requirement that a resident make a request in writing, I always advise that management’s responses (both interim and final) be done in a timely manner, be put in writing, and included in the resident’s file. That way we can ensure the file is documented and management can prove we engaged in the interactive process with our resident.
Just A Thought.