The persistence of the novel coronavirus in the physical environment, combined with social distancing guidelines and stay-at-home orders, has made apartment hunting especially challenging. Some health care workers and other essential workers are facing an additional hurdle: Landlords who are afraid to rent to people who are at a higher risk of COVID-19 exposure than the general population.
There's no doubt that landlords should take measures to minimize the transmission of the virus, such as regularly cleaning lobbies and other common areas in multi-family properties, limiting time in laundry rooms, and making sure employees engage in safe practices. But how far can a landlord's preventative measures go—would it be legal to refuse to rent to a health care worker or someone else likely to be exposed to COVID-19? Or would a blanket rejection constitute illegal discrimination under fair housing laws?
Federal fair housing laws prohibit discrimination on the basis of seven protected classes: race, color, religion, national origin, sex, disability, and familial status. Choosing or rejecting a tenant on the basis of occupation—such as the fact that the person is an ER nurse, infectious disease specialist, or nursing home employee—is not unlawful discrimination under federal law. However, an argument could be made that refusing to rent to certain workers constitutes discrimination based on disability.
It's unclear whether a person who has been exposed to COVID-19 is a person with a disability for purposes of federal law—but it's unlikely. Courts deciding federal disability laws have found that persons affected by problems of limited duration do not have a disability. However, there's always a chance that a judge will rule otherwise (and, if COVID-19 causes its hosts to have long-term damage, as might be the case, this could change the evaluation). Landlords should follow their normal practice of not inquiring about the nature or severity of a potential tenant's claimed disability—asking whether an applicant is infected could lead to a housing discrimination complaint. (And, even if the complaint is unsuccessful, a landlord will use valuable time and resources in defeating it.)
Federal fair housing laws not only protect people who actually have a disability, but also those who are "regarded" as having a disability. That means that if having COVID-19 qualifies as a disability, a landlord's refusal to rent to an applicant because the landlord believes the person could have the virus might be illegal discrimination—even if the person doesn't have the virus.
Federal law also protects those who are "associated with" someone with a disability. A close-to home example would be rejecting a home health aide because he takes care of a person with HIV-AIDS. Courts have held that doing so is discrimination, even if the patient does not meet the definition of a person with a disability. Arguably, rejecting a health care worker who associates with COVID-19 patients would constitute discrimination on account of such association—and here, unlike the "regarded as" situation above, the rejected tenant might not have to prove that the people with whom he associated were legally disabled.
To complicate the issue further, landlords are allowed to refuse to rent to someone who constitutes a direct threat to the health and safety of other individuals. For example, while it would be impermissible to reject a mentally ill person on that basis alone, it would not be illegal if the applicant had a history of acting violently against neighboring tenants and had refused to seek assistance to control that behavior.
Attempting to assess whether a health care professional or other essential worker is a threat, though, puts landlords on a slippery slope. A landlord can't refuse to rent to an applicant based on a personal belief that someone who, for example, works with immunocompromised patients during the pandemic, is likely to be a health threat. The normal guidelines still apply: Landlords must base their decisions to refuse an applicant on objective, individually focused evidence.
Some state and local laws ban additional forms of discrimination that the federal laws do not. In other words, even if discriminating against applicants on the basis of their occupation as health care workers isn't illegal under federal law, it might be under your state or local law. For example, the New York City Human Rights Law specifically prohibits housing discrimination based on "lawful occupation," so a landlord in New York city who refuses to rent to an applicant because the applicant is a pathologist would likely be illegally discriminating. Other, more broadly applicable laws might also prohibit similar discrimination: For example, arbitrary discrimination in housing is not allowed under California law. A good plaintiff's attorney would certainly make the argument that rejecting someone because of the person's lawful occupation constitutes arbitrary discrimination.
Even when it appears that a landlord's refusal to rent to a certain applicant is based on discriminatory reasons, many courts won't hold landlords liable if the landlord can justify the action. In other words, the landlord might prevail in a fair housing dispute if the landlord can demonstrate a sound business reason for the refusal: one that is based on reliable, objective evidence.
Say, for example, that a landlord receives an application from an emergency room doctor at a local hospital known to be treating large numbers of coronavirus patients. The landlord does some research (using reputable scientific publications) on virus transmission and the carrier status of health care professionals. She concludes that the doctor poses too much of a health risk to her other tenants, based on her research and the statistics coming out of the local hospital, and rejects him. The doctor turns around and sues the landlord for illegal discrimination under federal, state, and local laws. Will a court find that the doctor was a member of a protected class by virtue of having a perceived disability, his occupation, or another characteristic? Will a court find that the landlord made a sound business decision based on reliable, objective evidence, as compared to her own speculative fears? We will have to wait to find out the answers to these questions.
In the meantime, landlords who are faced with these issues should do their best to comply with fair housing laws, try to be as objective as possible when screening tenants, and document every contact, data point, and decision they make. When faced with an especially tricky tenant decision, landlords should seek advice from a local landlord-tenant attorney.