Is a person who has COVID-19 covered under Fair Housing disability discrimination protections?
There are differing opinions of whether COVID-19 is or should be considered a fair housing disability. It may be that determination of disability due to COVID-19 under Fair Housing Act standards will ultimately be decided by the courts. However, it is important for a housing provider to follow fair housing disability protections in all aspects of property management. Disabled persons cannot be treated less favorably than able-bodied persons in housing or housing-related matters.
A publication from one fair housing organization suggests that persons who currently have COVID-19, those who have a history of having COVID-19, and those who are perceived as having the virus may have fair housing protections under the federal Fair Housing Act and other civil rights laws, Another opinion holds that persons with COVID-19 who do not have underlying health conditions, while experiencing temporary illness for a short period may not be regarded as having a disability protected by the Fair Housing Act. However, a temporary disability if severe enough to substantially limit major life activities is not excluded from disability coverage under the Fair Housing Act.
Many persons who contract COVID-19 have debilitating symptoms which can aggravate existing health conditions to cause disability or those persons may even experience new health conditions brought on by COVID-19.
The Fair Housing Amendments Act which added disability as a protected class, defines a person with a disability as:
- Someone with a physical or mental impairment that substantially limits one or more
major life activities;
- A person who has a record of such impairment; or
- Is regarded as having such an impairment.
Factors to be considered in determining substantial limitation of major life activities include the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact of the impairment.
Disability is established when a person has a record of an impairment, as examples in this case, a person who has recovered from COVID-19, or who has been exposed to the virus and must quarantine according to public health guidances.
Disability discrimination protections also apply to persons who are regarded as having a disability. Persons may not have impairments but are perceived or treated as if they have a disability. If COVID-19 is qualified as a disability, a housing provider who refuses to rent to an applicant or who refuses services to a tenant because the provider mistakenly believes the person has COVID-19 could be subject to claims of illegal discrimination.
A housing provider should follow his standard practices regarding disability protections. A provider may not ask an applicant or tenant if he has a disability, the nature of his disability, the severity of a disability, how the disability was acquired, and medications the applicant/tenant takes.