Health, housing, and 'direct threats' during a pandemic.

The COVID-19 pandemic brought into stark relief the intimate nexus between health and housing. This extraordinary infectious disease outbreak combined with the astounding lack of a clear, coordinated, prompt, and effective public health response in the U.S. created conditions and introduced practical challenges that left many disoriented-not only health care providers but also housing providers. Innumerable issues are worth examination, such as implications of moratoria on evictions and foreclosures, force majeure contract clauses, insurability of pandemic-related damages and disruptions, holdover tenancies and delayed occupancies, and possible abatement of rent or homeowner/condominium association dues in light of closed common facilities (such as fitness areas) or reduced benefits to be enjoyed with residential property; however, this article focuses on fair housing law and the ``direct threat'' exemption; finds it unlikely that COVID-19 is a disability, likely that the ``direct threat'' defense is available, and both determinations to be case-specific inquiries dependent upon rapidly-changing scientific understanding of this disease. By highlighting adequate housing as a human right for which the government has primary responsibility for ensuring its achievement, this article underscores the importance of finding a holistic solution to public health and housing problems before the next public health emergency arises.

I. INTRODUCTION

The first confirmed case of COVID-19, an infectious disease caused by a virus initially referred to as 2019-nCoV and later as severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), in the USA was announced by the Centers for Disease Control and Prevention (CDC) on January 21, 2020 along with messages downplaying the risk of the disease to the US public. By the end of February, there were already five dozen confirmed cases in the USA, and by March 11, 2020, the outbreak was officially characterized as a pandemic by the World Health Organization (WHO). By March 21, 2020—exactly two months after the first announced case—the CDC’s position had shifted dramatically, with the CDC acknowledging ‘widespread transmission of COVID-19 in the United States will occur’ and ‘most of the US population will be exposed to this virus’. Meaningful federal contributions to the public health response were slow to materialize and by many accounts either wholly absent or counter-productive. Notwithstanding the embarrassing and inexcusable delay and shortage of diagnostic tests, the USA exceeded 50,000 confirmed cases across all 50 states as well as the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands by March 24, 2020. State and local authorities took a variety of actions to try to control a pandemic transcending their borders, including issuing ‘stay at home’ orders to close non-essential businesses and limit travel as well as imposing moratoria on evictions to promote housing stability during this public health emergency. Even with extensive social distancing measures being observed, by April 30, 2020, there were more than 1,000,000 confirmed cases and more than 60,000 deaths reported.

Without question, SARS-CoV-2 wreaked havoc and caused considerable damage (physical and mental health, familial, economic, social, political, etc.) during the first three months of its presence in the USA. Healthcare providers scrambled for ways to procure personal protective equipment for employees; to develop and implement clinical triage policies for the responsible and fair allocation of scarce critical care resources to COVID-19 and non-COVID-19 patients; and to make ethically and scientifically sound decisions regarding the conduct of research during the pandemic. Concurrently, housing providers scrambled to make sense of their own ethical and legal responsibilities as they encountered localized and statewide ‘stay at home’ orders (frequently deeming matters affecting real property to be non-essential and therefore shutdown), an increasingly negative economic forecast (with roughly 22 million Americans filing for unemployment in a four-week period), and several distinct moratoria on evictions limiting their potential ability to enforce leases or attempt to mitigate their own losses if tenants are unable to pay rent. Anecdotal reports suggested a host of housing-related problems emerging, including tenants planning mass rent strikes, healthcare providers being evicted from apartments or having their Airbnb reservations cancelled due to fears that they would spread the infectious disease, and homeowner associations (HOA) asking residents to report their COVID-19 status and sending HOA violation notices to residents who have parked recreational vehicles in their driveways in anticipation of potential self-quarantining or isolation without proper permission. Even compassionate and health-conscious housing providers are anxious about the possibility that the COVID-19 pandemic, the governmental orders (resulting in job losses and suspending evictions) might, in effect, require them to subsidize housing (with necessary utilities) indefinitely.

II. HOUSING AS A HUMAN RIGHT

The importance of adequate housing has long been recognized, having been included in several key international human rights instruments, including, eg, Article 25 of the Universal Declaration of Human Rights (UDHR), Article 5 of the International Convention for the Elimination of All Forms of Racial Discrimination, Article 11 of the International Covenant on Economic, Social and Cultural Rights, Article 14 of the International Convention on the Elimination of All Forms of Discrimination Against Women, Article 27 of the International Convention on the Rights of the Child, Article 28 of the International Convention on the Rights of Persons with Disabilities, and Article 43 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. As articulated in UDHR Article 25(1), ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’. Article XI of the American Declaration of the Rights and Duties of Man articulates the right similarly, ‘Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources’. As human rights ‘are interdependent, indivisible and interrelated’, adequate housing (comprising distinct concepts such as affordability, habitability, accessibility, and tenure security) is essential to the realization of other human rights including health and well-being. Respecting, protecting, and fulfilling the right to adequate housing are challenging under the best of circumstances (eg, there is not even an international consensus on the definition of homelessness) and are particularly complex in the midst of a pandemic for which a government was ill-prepared. Acknowledging that COVID-19 is ‘a colossal test of leadership’ and of ‘our systems, values and humanity’ and noting ‘[n]ow is the time for solidarity and cooperation’, the United Nations Office of the High Commissioner issued guidance calling upon governments to take action to ensure adequate housing, which as a matter of ‘good practice’ would include providing emergency housing with services for those affected by the virus and preventing people from becoming homeless. Public health and law experts similarly have called for health justice strategies and have outlined components for emergency housing responses to COVID-19, emphasizing that housing stability is critical for both an effective public health response that involves social distancing, quarantining, and isolation and economic resilience. ‘Housing is’, as Justice Holmes penned for the Supreme Court of the United States, ‘a necessary of life’.

III. FAIR HOUSING IN THE USA

While there is a recognized international human right to adequate housing (and, correspondingly, a governmental obligation to ensure that right can be achieved), there is no legal obligation in the USA that any specific individual or private entity become a housing provider. In the midst of a pandemic wherein housing stability becomes a central topic within the public health response discussions, it is understandable for there to be some confusion and anxiety not only among economically vulnerable individuals who rent their homes but also among housing providers—many of whom are economically vulnerable individuals or small businesses. COVID-19 has presented many questions for landlords about what their rights and obligations are. There are several applicable laws to ensure that housing is provided fairly (ie, free from discrimination) and that housing is safe, including the Fair Housing Act that prohibits discrimination by housing providers, the Americans with Disabilities Act that prohibits discrimination in public accommodations (including, eg, hotel rooms), and Section 504 of the Rehabilitation Act of 1973 that prohibits discrimination in federally assisted housing programs and activities. Federal fair housing laws set the baseline for housing provider conduct, which may be supplemented by additional state and local requirements (such as the Pennsylvania Human Relations Act, PHRA). Due to their similarities on the protection of individuals with disabilities, courts often analyze the statutes (such as the FHA, ADA, and PHRA) together as involving the same standard.

Focusing on the FHA requirements (which apply to most but not all housing providers), housing providers are prohibited from discriminating against individuals on the basis of race, color, religion, sex, familial status, national origin, or disability. The FHA bans (i) landlord decisions from being made because of a disability of the person seeking to rent the housing, a person intending to reside in that housing, or any person associated with that person; (ii) landlord refusals to make a ‘reasonable accommodation...necessary to afford such person equal opportunity to use and enjoy a dwelling’; and (iii) disability-related inquiries by landlords. Nothing in the FHA, however, requires a housing provider to lease property to someone ‘whose tenancy would constitute a direct threat to the health and safety of other individuals...’ This is known as the ‘direct threat’ exemption, which is intended to provide landlords with an affirmative defense (ie, a shield) from claims against them alleging FHA-based discrimination whether or not a disability exists. Unlike those for the ADA’s direct threat exemption, the FHA regulations for the direct threat exemption do not articulate a specific standard to make the determination. Because the FHA is administered and enforced by the U.S. Department of Housing and Urban Development (HUD) and the Department of Justice (DOJ), courts typically give deference to their guidance on the direct threat exemption. Invocation of the direct threat exemption to exclude individuals from housing cannot be based upon ‘fear, speculation, or stereotype’ but requires an individualized assessment based on ‘objective evidence...and not from unsubstantiated inferences’. As per joint guidance from HUD/DOJ issued in 2004, a housing provider is to 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’ and should also consider ‘whether the individual has received intervening treatment or medication that has eliminated the direct threat (ie, a significant risk of substantial harm)’. A subjective good-faith belief that there is a significant risk is insufficient, as the risk assessment ‘must be based on medical or other objective evidence’. Moreover, when reviewing a direct threat determination, courts have indicated ‘the views of public health authorities, such as the U.S. Public Health Service, CDC, and the National Institutes of Health, are of special weight and authority’.

IV. FAIR HOUSING AND COVID-19

Applying fair housing law principles to the unsettling circumstances of the COVID-19 pandemic raises a number of distinct questions, including whether COVID-19 status might confer protection as a disability and, regardless of whether COVID-19 status is a disability, whether landlords can rely upon the direct threat exemption during the COVID-19 pandemic to make housing decisions that might otherwise violate FHA.

Communicable, infectious diseases have been considered previously with regard to nondiscrimination protection. The Supreme Court had noted in 1987 in an employment discrimination case involving an individual with tuberculosis, ‘few aspects of a [disability] give rise to the same level of public fear and misapprehension as contagiousness’. Providing nondiscrimination protections for individuals with HIV/AIDs was prominent in advocacy for the passage of the ADA in 1990. As Webber and Gostin observed, ‘Attempts by critics of the proposed ADA to exclude persons with infectious or communicable diseases from coverage were unsuccessful, which again emphasizes congressional intent in extending protection’. While chronic conditions (regardless of asymptomatic or symptomatic status) such as tuberculosis and HIV/AIDs are squarely within the legal definition of disabilities, it is unlikely that COVID-19 would be a recognized disability. Temporary or intermittent conditions—even if substantially limiting major life activities or major bodily functions—have not typically risen to the level of disability afforded protection by nondiscrimination statutes. While amendments made to the ADA in 2008 have lowered the level of impairment required for recognition of an ‘actual disability’ or ‘record of disability’ for episodic conditions, the ADA statute and regulations explicitly reject impairments that are ‘transitory and minor’ with ‘an actual or expected duration of 6 months or less’ from legal protection for ‘being regarded as’ having a disability. While analogous text is not present within the FHA regulations, FHA cases have been handled similarly. For example, a 21-day respiratory infection occurring near the end of a lease term that affected the tenant’s ‘ability to plan, search, and make arrangements to move out’ was not sufficient to qualify as a disability under FHA and require the landlord to agree to the tenant’s request of a three-month lease extension as an accommodation. All individuals, regardless of their COVID-19 status, are deserving of adequate housing. Nevertheless, while the pandemic continues to spread in the absence of any proven treatments and vaccines, it seems at least plausible that—in the context of who, if anyone, should be in a statutorily protected class entitled to reasonable accommodation—those individuals with ‘unknown’ COVID-19 status and individuals who test ‘negative’ for the SARS-CoV-2 virus or antibodies are more in need of legal protection (given their chronic susceptibility to the infection, which substantially limits their ability to engage in major life activities) than those who are temporarily COVID-19 ‘positive’. While temporary stigma and fear of contagiousness are foreseeable, many who contract COVID-19 (perhaps as high as 80 per cent) will remain asymptomatic or experience mild symptoms and, as a result, not experience a substantial limitation to major life activities or major bodily functions (at least not beyond the period of acute illness) for which disability protections would be apt. It is possible that those who experience lingering problems from COVID-19 might have a disability for which a reasonable accommodation is required. What is reasonable, however, will be context-specific for the individuals involved and as our biomedical understanding of COVID-19 improves. A specific accommodation is not ‘necessary’ just because it would ameliorate a disability. Housing providers responding to the public health emergency might initiate new policies and procedures, including enhanced infection control and social distancing measures (ranging from closing common facilities and increasing cleaning schedules to restricting visitors and encouraging symptom monitoring and self-quarantine reporting). In the context of the COVID-19 pandemic, housing providers are uncertain as to which measures are necessary to meet baseline, general responsibilities to offer safe and sanitary housing facilities for any tenants; which might be considered optional; and which additional, specific measures might be required upon request as reasonable accommodations to ensure equal opportunity.

To date, HUD has issued only minimal guidance on COVID-19 regarding fair housing obligations, referring housing providers generally to CDC guidelines and indicating simply, ‘Exigencies associated with important and timely response to issues surrounding COVID-19 are not the basis for unlawful discrimination on race, color, religion, national origin, sex, disability, or familial status’. As of April 30, 2020, neither HUD nor DOJ has issued guidance directly regarding the direct threat exemption; however, the Equal Employment Opportunity Commission updated its ADA technical assistance document a month earlier and indicated in relevant part:

Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard. The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings. In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion. These facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time. At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.

Paradoxically, this suggests that individuals who have been diagnosed with COVID-19 or exhibit symptoms could also be a direct threat for FHA purposes and, as a result, experience a reduction in housing protections during the precise time when their housing stability is needed most to protect the health of the public (as well as their own). It is an unsettled legal question as to whether individuals who, while not having a COVID-19 confirmed diagnosis or symptoms, could be considered a direct threat by virtue of their occupation in a sector of the economy deemed ‘essential’ or life-saving (eg, as a healthcare provider, mail carrier, sanitation worker, bank teller, grocery store associate, mechanic, meatpacker, flight attendant, etc.) ‘Associated with’ discrimination in housing has long been forbidden, but it is unclear whether a blanket ‘direct threat’ statement by governmental agencies (such as HUD) would open the door to a ‘direct threat’ defense if a housing provider made decisions against individuals who are ‘associated with’ COVID-19 positive individuals through their occupations. An individualized assessment would still be warranted to focus not only on the positive COVID-19 status itself (and objective medical evidence about the associated transmission likelihood) but also the individual’s relevant conduct and behaviors that could exacerbate or mitigate their risk of harming others. While one might argue that ‘essential’ workers have increased exposures and increased risk of becoming infected and spreading COVID-19 to others, healthcare providers also have increased training and might engage in enhanced infection control behaviors that sufficiently neutralize any ‘direct threat’ they might pose. An individualized assessment might remain difficult for housing providers to implement, as the best available scientific and medical understanding of COVID-19 continues to be hampered by inadequate testing. For example, the infection fatality rate is unknown and unknowable under current conditions, and it remains unclear whether what (if any) immunity from reinfection antibodies might confer and for how long such benefits might last. Other case-by-case considerations might be if housing providers know that other tenants are immunocompromised or otherwise at high risk, in which case they might be faced with competing obligations to provide safe, healthful housing. For the time being, it seems likely that housing providers will be given some leeway so long as they act reasonably under the circumstances and base their decisions on objective, reliable, and current scientific information about COVID-19.

V. CONCLUSION

Health and housing problems require a holistic solution—and not just during a pandemic. The idea of adequate housing as a ‘wrap around’ healthcare service had been suggested even before the COVID-19 pandemic brought to clearer light the precarious ways in which housing stability affects health and well-being of individuals, families, and communities. The determination of fair housing obligations in the midst of the COVID-19 pandemic (ie, is COVID-19 status a disability and, nevertheless, is a ‘direct threat’ defense available to shield housing providers from discrimination claims) is highly dependent upon the rapidly changing scientific understanding of the disease, its typical duration and severity, and its yet-to-be-determined long-term health impacts. The problems highlighted by this outbreak are too complex for fair housing alone to handle and underscore the need to acknowledge that ‘[l]egal patches and ethical aspirations alone do not administer vaccines, conduct disease surveillance, provide basic treatments, or assure other core public health services’. Rather than try to force-fit COVID-19 into the framework of legal obligations of nondiscrimination and reasonable accommodation of disabilities, we must press for more comprehensive affirmative duties on our government (at federal, state, and local levels) to respect, protect, and fulfill a right (embodied by the interdependent rights already articulated not only in the U.S. Constitution but also in core international human rights instruments) to public health.