Governmental Affairs Update

December

CURRENT CHALLENGES
EMOTIONAL SUPPORT ANIMALS:

The abuse of process regarding Emotional Support Animals (ESA) is a battle we are fighting here at home, and a larger battle being fought nation-wide.  In 2020, we will refile our bill setting forth common sense requirements that would help stop tenants from being allowed to submit on-line “certifications” as proof of need and use of an ESA.  One issue we face is the general misunderstanding of what constitutes an ESA and how they differ from bona fide, trained, Service Animal.  Emotional Support Animals are not Service Animals and ESA’s require no training. A Service Animal is one trained to help people with disabilities such as; visual impairments, mental illnesses, seizure disorders, diabetes, and so on and enjoy protection on a federal level. Emotional support dogs provide their owners therapeutic benefits through companionship. The fact that these two types of support animals are often used interchangeably, deepens our fight for restrictions on the abuse of EAS’s by tenants to avoid addition fees regularly assigned to pet owners or to avoid pet policies altogether. 

On a National level, NAA and NMHC are working with HUD for seeking action against online companies that profit from selling sham assistance animal documentation. 

HOUSING CHOICE VOUCHERS AND INCLUSIVE COMMUNITIES:

On state and local levels, we recognize many different initiatives that are geared toward the overall goal of “inclusive communities.”  Two notable movements include local ordinance changes eliminating property owners from being able to opt out of the acceptance of Housing Choice Vouchers (Section 8 Vouchers) and the reform of the scope of criminal background checks that may be conducted to exclude applicants wherein rental housing providers whose policies automatically deny applicants with felony convictions are being subjected to fair housing testing and enforcement actions.  

While many of our property owners aren’t overtly against the acceptance of the Housing Choice Vouchers, they are more so averse to the time consuming process set forth by HUD, that often times serves only to hold up the “turn-over” time between releasing of a vacant unit.  

On a national level, NAA and NMHC have identified several ways to streamline the “Section 8” program and to make it more user friendly and mirror the private sector execution. They anticipate some announcement from HUD in the near future as to the adoption and implementation of these more efficient processes.    

CRIME REDUCTION ORDINANCES AND COLLATERAL DAMAGE: 

In the last few years, we have seen an uptick in local ordinances that allow a city/municipality to penalize “nuisance properties” as it relates to the number of emergency calls for 911 to a certain address.  This isn’t only being experienced at a local level, but caught the attention of national colleagues.  NAA and local stakeholders are working to provide feedback to various Senators regarding the “Eviction Crisis Act of 2019”. This pertains directly to the unintended consequences of eviction-related restrictions and data reporting requirements of various laws. 

KC IS BATTLING A TENANT’S BILL OF RIGHTS: 

Proposed legislation in Kansas City (Tenant’s Bill of Rights) includes a number of adverse policies that include in part; expanded retaliation protections for tenants, security deposit restrictions, greater limitations on landlords’ access to occupied units, required acceptance of partial payments, burdensome lease disclosures, source of income fair housing protections, more stringent restrictions on criminal screening, and right to counsel for all tenants. 

IN THE NEWS:
CWE LANDLORD IN TROUBLE FOR REJECTING HOUSING VOUCHER:

In July of this year, an applicant attempted to secure housing with an apartment located in a two-story residential building at the corner of Maryland and Taylor.  When the applicant indicated she would be using a voucher as a source of income, property owner's real estate agent refused to work with her, in violation of St. Louis City’s housing choice voucher requirement. 

In 2015, St. Louis City passed Ordinance No. 69953 regarding protections for source of income.  The Ordinance set forth requirements for the acceptance of vouchers as source of income.   The Ordinance also prohibits landlords, property owners and real estate agents from advertising that they won't accept a federal housing voucher. 

A recent study has identified more than 100 rental ads in the city that clearly discriminate against Section 8 recipients on websites like Zillow, HotPads and Craigslist.  Moving forward, there will be an effort to increase resources for enforcement of the ordinance. As of the end of 2019, the City has yet to fine or take a landlord or property manager to court over source-of-income violations.  The City has, however, sent letters to the CEOs of Craigslist and Zillow, asking for them to block ads in the City of St. Louis that say "no Section 8”. 

Under the ordinance, the maximum penalty the city could assess per violation is $500.

FOR YOUR INFORMATION:
BUILDING CODES:

The International Code Council will complete development of the 2021 National Model Building Codes in Fall of 2019. These codes will be published for adoption in 2020 and form the basis for most state and local code requirements.  The updated codes impact all multifamily construction types, and we are particularly focused on improving provisions relating to fire safety, energy efficiency and accessibility.

ON OUR RADAR:
FEE LITIGATION: 

Attorney generals in all 50 states and the District of Columbia have been investigating the mandatory charges variously called "resort fees," "destination fees," "service fees" or "amenities fees" at a number of hotel brands. Are apartments next? We’ll be on the look out for such proposals. 

SECURITY DEPOSIT INSURANCE:

Will there be legislation requiring landlords to offer insurance or make installment payments on security deposits?  Security deposits are seen by landlords as an indication of financial health, so doing away with them could be a possible downside of an insurance alternative, even though landlords are financially protected.  The insurance policy would serve as an alternative to the security deposit by releasing the escrowed funds and replacing them with a policy that serves to provide the relief to landlords. 

WEED AND WORK:  WHAT ARE YOU POLICIES?

A majority of states now permit medical marijuana use, and federal law may not always pre-empt state laws when it comes to their impact on the employment relationship. Employers need policies which aim to maintain safe and productive workplaces and don’t violate their obligations under state disability-accommodation laws.

A Few Key Laws:

The Americans with Disabilities Act (ADA) and related state laws require employers to enter into discussions with workers with disabilities to determine if reasonable accommodations can be provided so such workers can perform the essential functions of their job.

Additionally, the Family and Medical Leave Act (FMLA) and accompanying state laws allow qualified employees with serious health conditions to take time off for medical treatment. (The Drug-Free Workplace Act of 1988 requires federal contractors and grantees to guarantee drug-free workplaces as a condition of receiving government contracts or grants.)

Although medical marijuana use is not covered under the ADA or FMLA, and all marijuana use is still illegal under federal law, courts across the country are now being asked to decide whether medical marijuana use should be accommodated under state law.

Employer-Friendly Decisions:

Early cases tended to hold that employers need not accommodate cannabis treatment. In Washburn v. Columbia Forest Products, Inc., an employee alleged that his employer violated Oregon's disability-discrimination laws by firing him for testing positive for medical marijuana use.

The employer's policy prohibited employees from working with controlled substances (such as marijuana) in their system. The Oregon Supreme Court held that the "legislature intended the definition of 'disabled person' to be construed in light of mitigating measures that counteract … an individual's impairment."

The court determined that the employee was not considered "disabled" under state law because he could counteract his medical issues with prescription medication. Since the employee was not considered "disabled" in this context, the court determined that the employer had no statutory duty to accommodate him.

In Roe v. Teletech Customer Care Mgmt., the Washington Court of Appeals found that Washington's law does not prohibit an employer from firing an employee for using medical marijuana as authorized by a physician because the state law does not expressly require employers to accommodate on-the-job or off-duty medical marijuana use.

Similarly, the Montana Supreme Court in Johnson v. Columbia Falls Aluminum Co. ruled that an employer need not accommodate medical marijuana use. And in Ross v. RagingWire Telecommunications, Inc., the California Supreme Court refused to require employers to accommodate marijuana use.

The California high court noted that the state's legalization statute did not give marijuana the same status as legal prescription drugs. Observing the drug's illegal status under federal law, the court held that the state's disability-discrimination statute did not require employers to accommodate illegal drug use.

Employee-Friendly Decisions:

Recently, other courts have reached different conclusions. In Barbuto v. Advantage Sales and Marketing, LLCthe Massachusetts high court addressed whether an employer must accommodate medical cannabis use, since state law permits medical marijuana use and prohibits disability discrimination.

The employer offered a job applicant a position as an entry-level salesperson that was conditioned on passing a drug test. During the onboarding process, the applicant mentioned that she suffered from Crohn's disease and used medical marijuana based on her physician's written certification to treat it. She said she did not use marijuana daily and would not consume it before or during work. However, she was fired shortly after she started the job because her drug test came back positive for marijuana.

The court held that an exception to the employer's drug policy to permit offsite marijuana use may be a reasonable accommodation where the employee's physician determines that marijuana is the most effective treatment for the employee's disability and that any alternative medication permitted by the employer's drug policy would be less effective.

Removing Ambiguity:

To avoid such court battles, a growing number of states are writing employment protections into their marijuana legalization statutes. For example, Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Pennsylvania and West Virginia provide employment protections for medical marijuana patients. Such statutes prohibit discrimination against off-duty cannabis use or require employers to accommodate its use for medical reasons.  Notably, these statutes generally make exceptions for use by employees in certain safety-sensitive or federally regulated positions.

Tips for Employers:

An employer's drug-testing and screening practices must comply with emerging laws in relevant states, even though all marijuana use is still illegal at the federal level.

In states that cover medical marijuana patients under disability laws, employers should confirm whether positive drug tests are connected to medicinal use before making employment decisions.

If a worker seeks an accommodation for medical use, employers can lean on traditional HR practices by ensuring that the employee has the appropriate medical certification and will refrain from on-duty use or otherwise not pose a risk in the workplace.