By Divyanshi Dwivedi and Ray L. Flores II, Esq.
As COVID vaccine mandates become more prevalent — they already exist for some workplaces, schools, universities, airports and even dine-in restaurants — there are increased expectations that more mandates will ensue.
But can your landlord evict you if you refuse to get the vaccine?
A landlord-tenant relationship is a contractual one, usually governed by local law and the terms of the lease. Landlords and property managers must comply with the implied warranty of habitability for residential tenants.
A landlord may exploit the provisions of the lease by asking for proof of vaccination under the pretext of maintaining a safe and habitable environment for all.
However, because vaccinated people can become infected with and transmit COVID to others, the “safe and habitable environment” argument should be moot.
In theory, asking for proof of vaccination or evicting a tenant based on vaccination status blatantly invades one’s constitutional right to privacy.
However, while a tenant is under no obligation to disclose his/her vaccination status, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) doesn’t apply in landlord-tenant relationships because the law protects confidentiality only when healthcare providers, employers or insurance companies are involved.
At the federal level, the federal Fair Housing Act contains protections against discrimination by landlords on the basis of race, religion, gender or disability.
Therefore, a landlord who attempts to evict a tenant who refuses to take a vaccine based on a sincerely held religious belief, or a disability, could be exposed to liability under this law.
This law may also apply if a landlord refuses to lease a property to a new tenant based on vaccine status.
Requiring the vaccine also could expose a landlord to civil liability for violating a host of civil rights. On a purely contractual level, such a requirement could run afoul of the covenant of quiet enjoyment.
In some cases, your landlord’s right to require you be vaccinated for COVID may depend on state laws, which differ.
Florida, for example, has laws that make it clear businesses, including landlords, would violate the governor’s executive order by requiring “patrons or customers” to provide proof of vaccination. Florida law carries a $5,000 fine for each violation.
Some states have explicitly enacted anti-discrimination laws. Montana, for instance, enacted a COVID-19 anti-discrimination law prohibiting public and private entities from refusing “services, goods, facilities, advantages, privileges, licensing, educational opportunities, healthcare access, or employment opportunities based on [a] person’s vaccination status or whether [a] person has an immunity passport.”
In our opinion, a person cannot be evicted or denied housing based on their vaccine status. Doing so invades the fundamental right of privacy, the right to make medical decisions for their family (which includes refusal to receive unwanted medical treatments) and ultimately interferes with their medical freedom.
That said, this is uncharted territory as there is no robust, national regulatory scheme yet in place. That means it is possible that in the near future, refusing to comply with a landlord’s vaccination requirement may result in eviction proceedings.
However, until this issue reaches the footsteps of a higher court, a landlord should restrict enforcement of the contract to collecting rent, maximum elevator capacities, cleaning and sanitizing of common areas, etc., instead of infringing upon tenants’ rights by requiring them to be vaccinated.
This article is for informational purposes only and should not be construed as a substitute for legal advice. If you have a particular legal issue, please contact an experienced attorney in your state.
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