The 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.2 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 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.
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