HUD's Proposal to Ban Smoking in Public Housing Units Will Cause Hardship for Low-Income
Posted by Marybeth Saporita, Paralegal on December 21, 2015
Earlier this week, the Morning Call published an article about the U.S. Department of Housing and Urban Development’s proposal to ban smoking in all public housing units and extending 25 feet from any building (http://www.mcall.com/news/local/mc-lehigh-valley-public-housing-smoking-20151205-story.html). The proposal allows persons to submit written comments through January 19, 2016. Once the final rule is effective, the housing authorities will have 18-months to implement a plan to address the no-smoking ban.
According to the proposed policy, the intention of the ban is to “improve indoor air quality in housing, benefit the health of public housing residents and PHA staff, reduce the risk of catastrophic fires and lower overall maintenance costs.” At first glance, this may sound like a great idea. I mean, honestly, who doesn’t support clean air and health. However, a more thorough thought process brings up a number of concerns, one of them being how to accommodate individuals with disabilities who are smokers. This concerns individuals with physical impairments who can’t leave an apartment or, if they can, can’t travel 25 feet, as well as individuals with mental health impairments who self-medicate by smoking. Both these classes of individuals face potential loss of their housing if they don’t comply with the new no-smoking rules. The question then becomes how best to manage this situation to prevent the loss of housing for those individuals who can’t comply with the regulations.
Fortunately, the Fair Housing Act (FHA) allows an individual with a disability to request a reasonable accommodation or reasonable modification if such is needed to afford them the same use and enjoyment of their property as an individual without a disability. In the case of the smoking ban, a person is looking at requesting a reasonable accommodation which is a change in the policies, rules or lease terms. As such, an individual with a disability who smokes would be allowed to request a reasonable accommodation if their disability prevented them from complying with the no-smoking rules.
The easiest way to address the problem would be to request an RA allowing an individual to continue to smoke in their apartment. However, since the no-smoking proposal contains significant information on the ill-effects of smoking, it seems unlikely that such a request would be granted. Individuals would be pressed to find more reasonable solutions. For an individual with a mobility impairment, a more reasonable approach could be to ask that they be moved to another unit closer to an entrance so they can exit the building more easily to smoke outside. They could also request that they be allowed to smoke somewhat closer to the building than the required 25 feet, perhaps in a more isolated part of the outside area. If neither of these requests are viable or if the client has a mental health impairment, a different tactic would be to request a Section 8 voucher so the client could transfer to an apartment that doesn’t ban smoking. In either case, if the client agrees to stop smoking, an individual could request a reasonable accommodation giving them time to participate in a cessation program or, if the housing provider has a cessation program, extra time in that program.
Since reasonable accommodation requests are often tailored to the particular individual and their specific request, there may be a number of other ways to accommodate an individual with a disability who smokes. As the Fair Housing Act encourages a dialogue between the parties to come up with a workable solution, there is room to negotiate. The most important thing to remember is that no one should be evicted for the sole reason that their disability prevents them from complying with the rules, even the no-smoking ban. For such individuals, the protections offered under the Fair Housing Act are paramount to them keeping their home.