As COVID-19 vaccine mandates become increasingly widespread and controversial, many landlords around the country are feeling pressure to address the issue. This topic is particularly pressing for landlords with multi-unit housing, where common spaces, shared facilities, and on-property amenities like gyms and pools can make vaccination status a critical issue for tenants.
Landlords are faced with the challenge of both providing a safe, COVID-free living space and being sensitive to the resistance that some tenants feel to the vaccine. It’s a balancing act for landlords, and not an easy one, as they face complex questions about the legality, benefits, and consequences of a vaccine mandate.
The reality is that these are complicated questions without clear answers. To help landlords navigate this challenging and ever-changing landscape, here’s an overview of the key issues landlords should consider when contemplating a COVID-19 vaccine requirement for tenants.
Can Landlords Legally Require Tenants to Get Vaccines?
Like so many legal questions, the answer to this one is that it depends. While there are a number of factors to consider, two of the most important for landlords right now are 1) the language of the lease agreement and 2) applicable laws.
Landlords are given a lot of latitude to protect the health, safety, and welfare of tenants. As a result, landlords can include any terms in their lease agreement that they believe are necessary for this protection as long as the terms comply with all local, state, and federal laws.
As legal scholar Professor Jacqueline Fox observed, “as far as requiring the vaccine, it’s really uncharted territory in that we really don’t have a robust regulatory scheme or a lot of cases to use to argue by analogy. That said, my first question would be, ‘what does the lease say’?”
The lease is where landlords should first turn when considering this issue. Specifically, landlords need to ask themselves: does the lease include language requiring tenants to be vaccinated? If not, this is an issue that will need to be addressed through a new term or addendum at the time of lease renewal or included in future leases with new tenants.
The second issue – of ensuring that all lease terms comply with state, local, and federal laws – can get tricky with COVID-19 vaccine requirements. This is particularly challenging when it comes to state laws. Different states are handling vaccine mandates differently. For example, in April, Florida Governor Ron DeSantis issued an executive order, EO 21-81, prohibiting businesses from requiring individuals to provide proof of vaccination status in order to enter a business or receive goods and services.
In September, a Florida landlord issued a policy requiring all tenants to be vaccinated in order to renew their lease. Under this policy, tenants will be required to move out if they don’t provide proof of vaccination. At least one tenant has filed a complaint with the Florida Department of Agriculture and Consumer Services, asserting that the policy violates DeSantis’s executive order. The landlord argues that he does not provide “goods and services” and thus isn’t subject to the executive order.
This ongoing debate provides a good example of the challenges that should be anticipated as more landlords implement vaccine policies in the coming months. As states handle the issue differently, expect to see the issue addressed in federal courts and potentially even brought before the Supreme Court.
Additionally, this Florida case provides a good example of how differently vaccine mandates will be treated from one jurisdiction to another, as laws pertaining to vaccine mandates vary widely from state to state. This is an issue where it’s critical for landlords to do their homework to make sure any lease terms requiring vaccine mandates comply with all state laws.
Best Practices for Landlords
Just because there’s uncertainty on the issue doesn’t mean that it’s one that landlords have to avoid. Instead, it’s important for landlords to proceed with caution when considering a vaccine mandate for tenants. Here are a few best practices to keep in mind when considering such a requirement:
- Any vaccine mandates need to be included in the lease agreement. This means that unless there’s already language providing for this requirement in your lease, a vaccine mandate should only be considered at the time of renewing leases – as part of a new lease term or in an addendum – or for new tenants.
- Before considering a vaccine requirement, check to make sure that there are no local or state laws that prohibit such a requirement. For example, Montana, Arizona, and Florida have all passed laws prohibiting discrimination based on COVID-19 vaccination status.
- When implementing a vaccine requirement, ensure that it does not violate any federal laws. Specifically, be aware of any Fair Housing Act implications. Vaccination status is not a protected factor under the Fair Housing Act; however, there are circumstances where a vaccine mandate could result in discrimination under the Act. For example, if an applicant is rejected because of vaccination status and the applicant is not vaccinated because of an underlying health condition – for example, an auto-immune disease – this could result in an FHA violation by the landlord.
- Consider the specific reasons why a vaccine mandate is necessary for your property to help determine how pressing of an issue this is for you and your tenants.
- Explore all options – for example, vaccine incentives or other COVID-19 safety policies as alternative or additional ways to keep your property safe.
- As more landlords implement vaccine policies, pay attention to policies in your area for local precedents.
After a difficult couple of years, landlords continue to deal with unprecedented circumstances caused by the COVID-19 crisis. And, the issue of vaccine mandates presents just one more question for landlords to grapple with.
Time will tell how such mandates will be reviewed by courts and how tenants will respond to them. In the meantime, landlords should not be afraid to implement safety policies that they think are necessary, as long as such policies are included in the lease and in compliance with all current laws.
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