By Alyssa Gautieri
A community does not allow generators, however, a resident recently asked if they could have one because they’re afraid of losing power since they require medical equipment that runs on electricity. Another resident has requested an accommodation for a generator because they have anxiety regarding a potential power outage. When should an association make an accommodation for a generator?
An association will likely make an exception to its no generator policy only if a medical professional states that the accommodation is necessary to ameliorate a physical or mental impairment, according to Nancy Durand, an attorney at Smith Buss & Jacobs LLP in Yonkers, New York.
“The request for a generator should be treated as any other request for a disability-related accommodation or modification,” said Durand, who explained that the association should have a standard policy in place to ensure a consistent analysis following any accommodation or modification request.
First, the person requesting the disability-related accommodation or modification has to demonstrate that they have a disability and that there is a nexus between the disability and the requested accommodation or modification. “If a resident suffers from a mental impairment or mental illness, the association cannot on its own weigh the severity of the impairment or illness and try to decide whether the resident deserves the accommodation,” according to Durand. Rather, the association must rely on the medical professional’s opinion that the resident has a mental impairment and that the generator is necessary to ameliorate the impairment.
If a resident with a mental disorder — such as anxiety — requests a generator, the association should consult the medical professional if necessary to understand the disability-related need for a generator. If, for example, the medical professional states that the risk of suicide or another extreme consequence would be the direct result of not providing the accommodation, Durand said that the association should either make the accommodation or work with the resident to find a compromise.
Many life-supporting medical devices, including oxygen concentrators and apparatus such as stair lifts, run on electricity. There are alternative power sources available for some of these things, however, some of those solutions are not ideal, especially in the case of an extended outage. “At the end of the day it’s ultimately up to the individual resident to have a plan in place for an alternative source of power for medical devices that are needed,” said Durand.
If a request for a generator was denied and a resident later dies during a storm due to medical equipment failure, the association will likely not be liable if they followed the proper analysis for the accommodation request. “No one is going to feel great about that situation,” said Durand. “At the end of the day, the association complied with their responsibility.”
To ensure a proper analysis, the resident must submit proof that the disability is related to the accommodation. “Is there a natural, identifiable connection between what’s being asked for and the disability?” asked Durand.
“If a medical professional states that the accommodation is necessary to ameliorate a mental or physical disability, the association should provide the accommodation, if it is reasonable,” Durand said. “Even if the association thinks it will not be required to supply a generator as a reasonable accommodation or modification, it must still engage in the process and respond to every request,” said Durand, who explained that the failure to engage the resident in a timely manner can be deemed disability discrimination.
Durand further explained, after the association has determined that there is a disability and that the disability has a connection to the accommodation, the request may still be denied for a number of reasons. Some such reasons are if the installation interferes with business operations, causes administrative issues, or poses the risk of potential harm to other residents. According to Durand, “an accommodation request is not reasonable, and therefore need not be granted, if it imposes undue financial or administrative burdens on the association, or if it would substantially alter the nature of the association’s operations.”
Generators are loud and can be dangerous. Most run on propane — a highly combustible gas. According to the U.S. Consumer Product Safety Commission website, the primary hazards to avoid when using portable generators are carbon monoxide poisoning, electrocution, and fires or burns. Since many associations don’t even allow propane grills for barbecues, many will be hard-pressed to allow something associated with such risks.
Damage or injury caused by a generator may or may not be covered by insurance, depending on the association’s insurance policy. Durand noted that “a resident is responsible for paying for and maintaining any modification that’s been made on account of disability.” Although that does not mean the resident would necessarily be liable in the case of damage or injury.
If the generator causes damage, the association generally will not be able to write a resolution that the resident must cover the cost. According to Durand, the association will need to examine it on a case-by-case basis. If the generator was installed poorly or it was not maintained by the resident, the resident may be held accountable. To prevent possible issues, a housing entity can dictate the size and type of the generator that the resident receiving the accommodation may install. If a resident fails to follow these guidelines, they may also be held accountable, Durand noted.
A housing entity cannot ask a resident to obtain excess insurance coverage to cover potential damage caused by a generator, according to Durand. “That’s placing an additional condition on that person’s right to the use and enjoyment of the premises that you’re not placing on someone without a disability,” she said.
In the case that one person is approved for a generator, other residents may also begin to file accommodation requests. Durand suggested that a written policy will help ensure a consistent analysis of all accommodation or modification requests.
In some cases, a resident may not ask permission before purchasing a generator — even if it is against association rules or bylaws. In this case, Durand said the association should follow the same analysis. If the result reveals there is no need to accommodate the request, then the association can enforce that regulation. “The association does not have an obligation to accommodate a request that has not been made,” Durand said.