By Corey J. Hunter and Jason S. Nichols
As COVID-19 vaccination rates increase, so too do vaccination-related concerns for landlords . Landlords face pressures to provide a COVID-19-free environment through vaccinations and other measures while also facing resistance to vaccinations and other COVID-19 prevention policies. Landlords must balance these pressures by developing COVID-19 policies that both serve residents and comply with the law.
Landlords considering COVID-19 vaccination status during housing decisions should be aware of (1.) liability shield laws, (2.) anti-discrimination laws, and (3.) Fair Housing Act liability.
Liability Shield Laws
Landlords in many states may be protected from some COVID-19-related lawsuits by COVID-19 shield laws. Landlords should consider applicable COVID-19 shield laws when facing threatened or prospective COVID-19 litigation and when considering COVID-19 vaccination requirements.
More than 30 U.S. states have enacted legislation making businesses immune from civil liability from COVID-19 exposure occurring on the business’s premises or resulting from the business’s conduct. The immunity often does not extend to harm from COVID-19 exposure resulting from a business’s willful, reckless or intentional misconduct or infliction of harm. The immunity extends to different types of entities in different states.
For example, Utah’s COVID-19 shield law grants immunity “from civil liability for damages or an injury resulting from exposure of an individual to COVID-19 on the premises owned or operated by [a] person, or during an activity managed by [a] person,” not applying to “willful misconduct, reckless infliction of harm, or intentional infliction of harm.” (Utah Code Ann. § 78B-4-517).
Landlords should also consider whether their general liability insurance policy covers losses from viruses, such as COVID-19, if shield laws don’t apply.
Landlords in some states may be prohibited from making rental decisions based on a tenant’s COVID-19 vaccination status. Landlords should consider applicable COVID-19 Anti-discrimination laws before using COVID-19-related criteria as a basis for housing decisions.
Some states have enacted legislation prohibiting discrimination based on COVID-19 vaccination status. Several states prohibit public entities from requiring COVID-19 vaccination before allowing entry or granting services, while other states prohibit even private businesses from the same discrimination.
For example, Montana’s COVID-19 anti-discrimination law prohibits public and private entities from refusing “services, goods, facilities, advantages, privileges, licensing, educational opportunities, health care access, or employment opportunities based on [a] person’s vaccination status or whether [a] person has an immunity passport.” (Mt. HB 702,§ 1).
Potential Fair Housing Act Liability
Landlords making rental decisions based on COVID-19 vaccination status should ensure those rental decisions are not prohibited by the Fair Housing Act (FHA).
In renting and housing-related activities, the FHA prohibits (1.) discrimination based on protected factors of race, color, national origin, religion, sex, familial status, and disability, (2.) refusing reasonable accommodations for persons with disabilities seeking housing, and (3.) some inquiries regarding disability.
Although COVID-19 vaccination status is not a protected factor and lack of COVID-19 vaccination not a disability, a landlord might engage in FHA-prohibited behavior while making rental decisions based on COVID-19 vaccination. For example, a landlord might incur FHA liability by refusing to rent to or make reasonable accommodations for a person who is not COVID-19 vaccinated because of an auto-immune disability. A landlord might also incur FHA liability by making housing decisions based on an assumption that a prospective resident has COVID-19 immunity or is not COVID-19 vaccinated because of their national origin, religion or another protected factor.
While shield laws, anti-discrimination laws and the Fair Housing Act form the basis of COVID-19 law, landlords may face a variety of issues surrounding COVID-19 and COVID-19 vaccination.
Corey Hunter is a valued member of Parsons Behle & Latimer’s Summer Associate program, working under the close supervision of Parsons’ attorneys. Corey is not yet licensed to practice law and will enter his second year of law school at J. Reuben Clark of Brigham Young University this fall. Questions concerning this article should be directed to Jason S. Nichols, chairperson of Parsons’ real estate practice team at (801) 532-1234 or send an email to firstname.lastname@example.org.