Legal Blog

Federal Law Prohibits Landlord-Mandated COVID-19 Testing, Quarantining

COVID Testing in CarThe Fair Housing Act, as amended, 42 U.S.C. § 3601 et seq. (the “FHA” or “Act”), prohibits discrimination on the basis of disability. The FHA is relevant in addressing concerns related to the recent outbreak of COVID-19 and other pandemics for multiple reasons. The FHA imposes restrictions on a housing provider’s ability to make disability-related inquiries of individuals with disabilities.1 The FHA also makes it unlawful to refuse to provide reasonable accommodation to individuals with a disability when accommodation may be necessary to afford such person an equal opportunity to use and enjoy housing. For these reasons, asking for information about the nature of a communicable disease, like COVID-19, or asking for evidence about exposure or test results before allowing a prospective tenant to reside on the premises, will generally violate the Act. Housing Providers may not require tenants or applicants to disclose whether they have COVID-19, an underlying medical condition, or whether they have medical conditions that make the applicants or tenants particularly vulnerable to COVID-19.3

“In the months since the beginning of the COVID-19 pandemic, local fair housing organizations have reported instances of tenants being evicted after testing positive for the virus or being told to self-quarantine due to possible exposure. There are also reports of Housing Providers refusing to accept potential tenants who are exiting nursing homes, due to the perception that residence in such facilities increases one’s risk of exposure to the virus. Screening questions in and of themselves may or may not violate the Fair Housing Act.” 4

Despite these protections, the FHA provides that housing need not be made available to people “whose tenancy would constitute a direct threat to the health or safety of other individuals.” COVID-19 is a highly contagious disease, raising the question of whether this “direct threat” exception would preclude the Act protections in particular circumstances. Application of this exception must be based on an individualized evaluation of the individual and if the threat can be reduced or eliminated by making a reasonable accommodation, an accommodation should be offered.5 Although an argument can be made that the “direct threat” exception applies to those tenants or applications with COVID-19, analysis on the disease is still too new to definitively state that permitting a tenant to move in who is positive for COVID-19 would be a “direct threat to the health or safety of other individuals.” This is especially true because it does appear that taking proper precautions can lead to the reduction of the infection.

Housing Providers should instead encourage prospective and current tenants to adopt practices to prevent the spread of COVID-19 like washing hands regularly, wearing cloth face coverings, and practicing social distancing, and can require these things in the common areas and leasing office. Housing Providers may also ask prospective and current tenants to self-report COVID-19 exposure or an underlying medical condition—but not about treatment—as long as this does not then lead to discriminatory behavior.

Further, Housing Providers can alert neighbors that there has been a COVID-19 diagnosis on the property but need to make sure not to disclose the name, apartment number or other information that would identify who is infected. Finally, Housing Providers may request documentation that demonstrates that an accommodation is necessary for a medical condition or disability but cannot request details of the diagnosis or disability.

 

1 42 U.S.C. § 3604(f); 24 C.F.R. § 100.202 (c).

2 42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. § 100.204.

3 Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under the Fair Housing Act.

4 See https://nationalfairhousing.org/covid-19- housing-stories/.

5 42 U.S.C. § 3604(f)(9).

ABOUT RYAN PATINO

Ryan.Patino@offitkurman.com | 240.507.1709

Ryan Patino is a member of Offit Kurman’s Landlord Representation practice group. His focus is on counseling corporations and small businesses in matters involving complex real estate transactions, litigation, and compliance with federal and D.C. housing laws. Mr. Patino handles all aspects of litigation on behalf of real estate development and property management companies, which includes landlord and tenant matters, contract disputes, defending against allegations of discrimination, and administrative cases. He is a decisive and aggressive litigator who is adept at determining the financial value of a given case and designing a strategy that leads to the best possible outcome for his clients. Aside from litigation, Mr. Patino also assists clients with negotiating and drafting residential and commercial leases, secondary lease documents, purchase and sale agreements, bylaws, and contractor agreements.

 

 

 

 

 

 

ABOUT OFFIT KURMAN

At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we focus on furthering our clients’ objectives and provide timely services and within budget, all while focusing on the clients’ interests and goals.

Offit Kurman is one of the fastest-growing, full-service law firms in the United States. With over 230 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well-positioned to meet dynamic businesses’ needs, as well as the needs of the people who own and operate them. We also provide representation of individuals and families in diverse matters ranging from estate planning and asset protection to intellectual property structuring and entrepreneurial start-ups. Our International Group provides clients with a broad range of services for transactions and dispute representation for clients worldwide, including Europe, Canada, Asia, Latin America, the Middle East and Africa.

At Offit Kurman, we distinguish ourselves by the quality, breadth, and global reach of our legal services — as well as our unique operational structure, which encourages a culture of collaboration and entrepreneurialism. The same approach that makes our firm attractive to legal practitioners interested in representing clients in the middle market, also gives clients access to experienced counsel in almost every area of the law and in many jurisdictions in the U.S. and abroad

Subscribe and follow us on our Blog, and on Facebook, Twitter, Instagram, YouTube, and LinkedIn. You can also sign up to receive LawMatters, Offit Kurman’s monthly newsletter covering a diverse selection of legal and corporate thought leadership content.

DELAWARE | MARYLAND | NEW JERSEY | NEW YORK | NORTH CAROLINA | PENNSYLVANIA |SOUTH CAROLINA | VIRGINIA | WASHINGTON, DC