If smoking is otherwise allowed in your association, you do not need to ban it as a reasonable accommodation for a person with asthma.
Phyllis Davis suffers from asthma but lives in a condominium complex that allows residents to smoke in their units. Davis claimed that the smoke from a neighboring unit aggravated her asthma. Davis is a cancer survivor with “a history of asthma and multiple chemical sensitivity disorder.” When the association didn’t ban smoking in her building she sued alleging that the association had discriminated against her by not granting her reasonable accommodation request to ban smoking in her building thereby violating the Fair Housing Act because of her disability. Davis also alleged a nuisance claim under the bylaws.
The opinion of the United States Court of Appeals, 6th Circuit is instructive to any association faced with a reasonable accommodation request, as it provides substantive guidance in evaluating the request. Here is what the court said when analyzing the claim:
As to item 3(d), the court held that Davis cannot meet this element. Specifically, the court found that “text and precedent both show that the phrase ‘reasonable accommodation’ means a moderate adjustment to a challenged policy, not a fundamental change in the policy.” The court proceeds to carefully analyze this last requirement and define what it means by both text and precedent. In the end, the court simply concludes that a total ban would be a fundamental change in the policy and therefore she loses the FHA case.
Davis v. Echo Valley Condominium Association, 945 F.3d 483 (2019) (Michigan).