No Vaccine, No Rental: Can Landlords Reject an Unvaccinated Tenant?

VOLUME III

By Shamontiel L. Vaughn

When landlords prepare themselves to find a new tenant, they already have a number of credentials on their minds: pet-friendly preferences, good credit, eviction status, professional and personal references, annual salary to cover rent, funds for security deposits, etc. But in today’s political climate, there’s a taboo question that landlords may (or may not) dance around: Is this renter vaccinated from coronavirus disease 2019?

Coronavirus Basics From Health To Local Stats

In both Texas and Florida, more than half of residents have been vaccinated with Pfizer, Moderna or Johnson & Johnson. According to Mayo Clinic, 60% of Floridians are fully vaccinated while Texans are lower at 53.6%. But that still leaves a sizable amount who have not been vaccinated. And this highly contagious disease can be spread in three ways—breathing in air when close to an infected person who is exhaling small droplets; having infected small droplets and particles land on the eyes, nose or mouth (usually by coughing or sneezing); and/or touching one’s eyes, nose or mouth with infected hands.

While basic manners would eliminate people from sneezing or coughing on one another, simply being within 6 feet of an infected person can put someone in harm’s way. Within less than two years (and at the time of this publication), the Centers for Disease Control and Prevention reports that more than 50 million people have been infected and over 799K people have died from COVID-19 in the United States, not including the World Health Organization’s numbers skyrocketing to more than 271 million infected and a little over 5.3 million deaths related to COVID-19.

While wearing masks and social isolation may help decrease the numbers, there’s the matter of people still having to live their daily lives. That includes simple things like business-to-consumer contact and moving into new homes. And for landlords who are concerned about a tenant’s views on vaccinations, this can be an especially touchy subject, depending on which side of the vaccination debate they’re on.

Are Landlords at Risk of Being Sued for Rejecting Anti-Vaxxer Tenants?

Under President Joe Biden’s administration, federal employees must be vaccinated. That includes the General Services Administration, which provides workplaces by constructing, managing, and preserving government buildings, and by leasing and managing commercial real estate. This includes contractor employees who must be fully vaccinated (received two vaccine doses) by Dec. 8, 2021.

To avoid discriminatory risks, landlords should be asking all potential applicants the same questions if choosing to ask at all.

While it’s safe for landlords to assume federal employees who are potential tenants have been vaccinated, what about non-federal employees who are just trying to rent single-family homes (or multi-units)? Are they also obligated to be vaccinated? Unlike multi-units such as condominiums or apartments, where a large amount of people may be encountering each other in laundry basement facilities, storage units and/or lobby areas, single-family homes have much more privacy. But should this matter to landlords? That may depend on where a tenant resides.

In early October, Texas Gov. Greg Abbott issued a second executive order against COVID-19 vaccine mandates. Abbott banned any entity in Texas, including private businesses, from requiring vaccinations for employees or customers.

In Florida, Gov. Ron DeSantis is preparing to sue the Biden administration over the COVID-19 vaccine mandate for large companies. And according to the Florida Senate (Chapter 392, Section 56), when it comes to illnesses (in this case tuberculosis) “a person may not be ordered to be hospitalized, placed in another health care facility or residential facility, or isolated from the general public in the home, except upon the order of a circuit court and upon proof.”

With both state governors fighting against mandates for small businesses to enforce vaccination mandates, this may arguably help tenants escape the vaccination question and support them if a tenant rejection becomes a legal issue. So what rights do landlords have? What can they review as an alternative?

COVID-19, Credit Scores and Disclosure

The U.S. Equal Employment Opportunity Commission (EEOC) confirms that an employer may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19. This may include asking them if they have a fever, chills, cough and shortness of breath. Landlords also have the right to ask similar questions to avoid putting themselves at risk when meeting potential tenants for walkthroughs or the initial application stage.

However, as with teleworking employees, tenants who are able to submit information without interacting with the property manager or landlord are in a gray area. Generally speaking, potential tenants would not put either group at risk of infection unless meeting in person.

Even moving into a single-family home would not require running into other tenants or the landlord in the lobby area; however, moving company employees may be at increased risk. But that does not affect the landlord’s bottom line, unless the moving company is somehow affiliated with the property owner.

To avoid discriminatory risks, landlords should be asking all potential applicants the same questions if choosing to ask at all. Tenants who have received referrals are well within their rights to ask their own social circle if the landlord was consistent with asking other potential applicants if they had been vaccinated, too. However, just because the question is asked does not mean the tenant is required to answer.

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Americans with Disabilities Act (“ADA”) doesn’t specifically ban landlords or property managers from asking tenants whether they currently have and/or had COVID-19. And because tenants have a right to protect their private medical history, they can choose to opt out of answering this question or whether they have been vaccinated.

With that said, due to COVID-19 also affecting some citizens’ financial status, it may show up indirectly via lower credit scores. For example, Consumer Reports confirms that lenders have been tightening credit limits by closing credit card accounts; lowering credit limits; and (for renters who once were homeowners) slowing or stopping the processing of applications for refinancing, home equity lines of credit and mortgages. Those lower credit scores will be noticeable to property owners when renters are trying to rent an apartment.

It may also show up in the form of job loss for nonessential workers, or those who were at risk of termination for hospitalization or mandatory social isolation. Renters should already be staying on top of any financial hardships that would affect their credit before applying for a new residency. And landlords will want to take a closer look at any curious stretches of time where evictions or job loss became a pattern.

Can Tenants Turn the Table With Anti-Vaxx Landlords?

Just as tenants have a right to their private medical history, so do property owners. If tenants are uncomfortable or uncertain about a landlord’s stance on vaccinations, they can also request face masks, inquire about vaccination status, or request a 6-foot distance during a walkthrough or in-person application needs.

While the property owner generally has the upper hand when it comes to whether these requests will be met, denying requests such as these may significantly lower their pool of ideal tenants. If both parties cannot reach a common ground between each other, and the realtor or real estate agent who may be the mediator between the two, landlords may be getting in their own way.

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Rental Inspections: Don’t Wait Until Move-Outs Only

Move-in/move-out inspection and periodic inspections are important aspects of managing a rental property. By better understanding what to look for during inspections and how often to schedule them, it is possible for landlords to avoid common mistakes.

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The Ins and Outs of Working with Investors

Rental Inspections: Don’t Wait Until Move-Outs Only

Creating a Go-To Contractor List

Navigating Out-of-State Rental Properties

Is That Emotional Support Animal Legit?

Repairs: Who Pays for What?

Can Pet-Friendly Homes Bring Better Tenants?

Tenant Modifications That Make a Happy Home

Rekey for Tenant Safety

How To Protect Yourself From Marginal Applicants

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