Fair Housing Issues And COVID-19
The virus named “SARS-CoV-2” and the disease it causes have been named “coronavirus disease 2019” (commonly referred to as “COVID-19”). On January 30, 2020, the World Health Organization (“WHO”) declared COVID-19 a “public emergency of international concern.” On January 31, 2020, the U.S. Health and Human Services Secretary declared the COVID-19 outbreak a public health emergency. On March 11, 2020, the WHO characterized COVID-19 as a pandemic. On March 13, 2020, President Donald Trump declared the COVID-19 outbreak a national emergency. COVID-19 will most certainly now have a substantial impact on the operation of multifamily housing, especially housing for seniors and persons with disabilities.
The Fair Housing Act, as amended, 42 U.S.C. § 3601 et seq. (“FHA”), 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 in at least two major ways. First, the FHA imposes restrictions on a housing provider’s ability to make disability-related inquiries of individuals with disabilities. 42 U.S.C. § 3604(f); 24 C.F.R. § 100.202 (c). Second, nothing in the FHA prohibits a housing providers from restricting tenancy to someone who constitutes a direct threat to the health and safety of others individuals. 42 U.S.C. § 3604(f)(9); 24 C.F.R. § 100.202(d). Third, the FHA 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. 42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. § 100.204.
The U.S. Department of Housing and Urban Development (“HUD”) has encouraged housing providers toaccess information about the health impacts and proper handling of COVID-19 cases from the Centers for Disease Control and Prevention (“CDC”), and/or state or local health officials. However, HUD has failed to provide any specific guidance to multifamily housing providers on these issues. HUD has only provided general reminders that multifamily housing providers should “remain faithful to obligations under the Constitution, Fair Housing Act and related regulations.” Questions and Answers for Office of Multifamily Housing Stakeholders at Q3 (Last Updated March 12, 2020) https://www.hud.gov/sites/dfiles/Housing/documents/MF_Corona_QA_FINAL_3-12-20.pdf. See also COVID-19 FAQs for the Public Housing, Housing Choice Voucher (HCV) (including Project-based Voucher Program (PBV) and Native American Programs (stating that Public Housing Authorities and housing providers should consider “[r]esidents with special needs, and any reasonable accommodation that may be requested.”) https://www.hud.gov/sites/dfiles/PIH/documents/COVID19_FAQ_PIH_Final.pdf.
We offer the following FHA questions and answers to consider in addressing issues related to COVID-19 in multifamily housing.
II. RELEVANT FHA REQUIREMENTS
A. DISABILITY-RELATED INQUIRIES
With limited exception, the FHA prohibits housing providers from making an inquiry to determine whether an applicant for a dwelling; a person intending to reside in that dwelling after it is sold, rented, or made available; or any person associated with that person has a disability or making an inquiry as to the nature or severity of the disability of such a person. 24 C.F.R. § 100.202(c). While seemingly applicable only to applicants for housing, HUD has interpreted this provision more broadly as applicable to tenants. See, e.g., Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodations Under the Fair Housing Act at Q and A 16-19 (May 17, 2004) https://www.hud.gov/sites/documents/huddojstatement.pdf; Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Modifications Under the Fair Housing Act, at Q and A 6-8 (March 5, 2008) https://www.hud.gov/sites/documents/reasonable_modifications_mar08.pdf. Making disability-related inquiries without a legitimate non-discriminatory reason could violate the FHA’s general prohibition on discriminating on the basis of disability. Indeed, making any housing-related decision on the basis of disability could result in a violation of the law.
B. DIRECT THREAT
Nothing in the FHA requires a housing providers from restricting the tenancy of someone who constitutes a direct threat to the health and safety of other individuals. 42 U.S.C. § 3604(f)(9); 24 C.F.R. § 100.202(d). However, an assessment of whether an individual is a direct threat to the health and safety of others cannot be based upon fear or stereotype. Instead, the determination must rely on an individualized assessment that is based on reliable objective evidence (e.g., current conduct or a recent history of overt acts). The assessment must consider: (1) the nature, duration, and severity of the risk of injury; (2) the probability that injury will actually occur; and (3) whether there are any reasonable accommodations that will eliminate the direct threat.
C. REASONABLE ACCOMMODATION
A reasonable accommodation is an exception to a housing rule, policy, or practice that may be necessary to afford a person with a disability an equal opportunity to use and enjoy housing. 42 U.S.C. § 3604(f)(3)(B); 24 C.F.R. § 100.204. A housing provider may deny an accommodation if there is no disability-related need for the accommodation or if it not reasonable – i.e. it would impose an undue financial and administrative burden on the housing provider or would fundamentally alter the nature of the housing provider’s operation. HUD Reasonable Accommodation Joint Statement at Q5.
III. PREPAREDNESS QUESTIONS AND ANSWERS
1. Are persons with COVID-19 persons with disabilities under the FHA?
A person with influenza-like illnesses, including COVID-19, may or may not be a person with an actual disability. However, the FHA prohibits discrimination against persons with an actual disability or those regarded as or having a record of a disability. A person with COVID-19 who has a short-term illness and has a normal recovery like the seasonal flu will generally not fall into any of the categories because it is a short-term illness with no long-term impact. However, those who have long-term effects of COVID-19 might be persons with disabilities.
Housing providers should counter any stigma and discrimination in the community. It is also recommended that housing providers download https://www.cdc.gov/coronavirus/2019-ncov/communication/factsheets.html to keep applicants and residents informed about public health recommendations to prevent disease spread and about changes to services that might be related to the outbreak. Appropriate messaging might include posting signs at entrances and in strategic places providing instruction on hand hygiene, respiratory hygiene, and cough etiquette. Housing providers, especially those receiving HUD or other financial assistance, should be sure to provide educational materials about COVID-19 for non-English speakers, as needed.
2. May a housing provider require an applicant or tenant who does not have influenza symptoms to disclose whether she or he has a medical condition that the CDC says could make them especially vulnerable to influenza complications?
Housing providers generally should not require applicants and tenants to disclose whether they have medical conditions that make the applicants and tenants particularly vulnerable to influenza complications. However, housing providers should encourage tenants to adopt infection-control practices such as regular hand washing, coughing and sneezing etiquette, proper tissue usage and disposal, and social distancing, which does not violate the FHA.
3. May a housing provider encourage tenants to self-report symptoms consistent with COVID-19 or self-quarantining
In Questions and Answers for Office of Multifamily Housing Stakeholders, HUD states that resident communication should include “Encouraging residents to self-report quarantines.” While this publication is generally applicable to multifamily housing receiving federal financial assistance, it is evidence that housing providers have a legitimate non-discriminatory reason for encouraging self-reporting of symptoms and quarantines to ensure other residents are protected from contracting the virus.
4. May a housing provider prohibit tenants with symptoms of influenza-like illness from common areas of a multifamily housing development?
A housing provider can restrict tenants who become ill with symptoms of influenza-like illness from common areas. Generally a housing provide may not ask tenants to disclose a compromised immune system or a chronic health condition because it is likely to disclose the existence of a disability. However, the CDC has made recommendations for homeless shelters that are relevant here. In its interim guidance, the CDC has stated that a client with “mild respiratory symptoms consistent with COVID-19” should be confined to individual rooms and “have them avoid common areas.” This guidance from the CDC appears to support that an applicant or tenant who displays “mild respiratory symptoms consistent with COVID-19” could constitute a direct threat should be restricted from common areas of housing facilities to avoid spread of the virus.
5. Does the FHA require a housing provider to provide a family member a vacant unit as a reasonable accommodation because he or she needs to kept separate from another family member?
This type of request could be considered a request for reasonable accommodation if the family member has another permanent or chronic condition that compromises the person’s immunity. However, providing a vacant unit rent-free is likely to be considered unreasonable as a fundamental alteration of the housing services that are being provided. If the housing provider wishes to voluntarily provide the vacant unit it is encouraged to do so if consistent with federal, state, and local laws and recommendations, but there is likely no obligation to do so under the FHA.
6. Does the FHA require a housing provider to provide a transfer for a tenant who is living near someone who has symptoms of COVID-19 (e.g., a neighbor requests a transfer)?
This type of request could be considered a request for reasonable accommodation if the individual requesting the transfer has another permanent or chronic condition that compromises the person’s immunity.
7. Must a housing provide continue to provide tenants reasonable accommodations previously granted if it would expose the housing provider to COVID-19?
Housing providers generally have an obligation to continue to provide reasonable accommodations previously granted to tenants unless it would result in an undue financial and administrative burden, a fundamental alteration, or a direct threat. This will require the housing provider to determine if the tenant is displaying symptoms consistent with COVID-19 or was otherwise exposed to the virus. If a housing provider’s staff must enter a unit or otherwise be exposed to a tenant, the housing provider likely has a legitimate, non-discriminatory reason to ask the tenant if he or she has had such symptoms, has recently traveled, or has been otherwise potentially exposed to someone with the virus.
8. Is a housing provider required to care for the service or assistance animal for a tenant with a disability who is unable to care for the animal because of COVID-19?
A housing provider need not take responsibility for the custody and control of a service or assistance animal if the tenant is no able to care for the animal. “A person with a disability is responsible for feeding, maintaining, providing veterinary care, and controlling his or her assistance animal.” Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act, at 14 (January 28, 2020).
9. Is there guidance on how to address issues raised by COVID-19 that impact ADA-employers?
The U.S. Equal Employment Opportunity Commission has published a guidance document, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” which can be found at https://www.eeoc.gov/facts/pandemic_flu.html. The CDC has also published a guidance document, “Interim Guidance for Businesses and Employers, which can be found at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html
 The exceptions include the following:
(1) Inquiry into an applicant’s ability to meet the requirements of ownership or tenancy;
(2) Inquiry to determine whether an applicant is qualified for a dwelling available only to persons with handicaps or to persons with a particular type of handicap;
(3) Inquiry to determine whether an applicant for a dwelling is qualified for a priority available to persons with handicaps or to persons with a particular type of handicap;
(4) Inquiring whether an applicant for a dwelling is a current illegal abuser or addict of a controlled substance;
(5) Inquiring whether an applicant has been convicted of the illegal manufacture or distribution of a controlled substance.