Wondering if COVID-19 qualifies as a disability under the Fair Housing Act? Can you ask consumers to answer questions about their health before working with them? Check out this guidance to help you answer questions on these issues.
COVID-19 presents a number of novel legal issues, including how members must navigate their fair housing duties during the pandemic. Given that COVID-19 may be disabling, in the short-term and long-term, and can even cause death, members wonder whether COVID-19 is a “disability” entitled to protection under the Fair Housing Act, despite the dangers its highly-contagious nature poses to others. Members also wonder whether they may ask individuals to complete a COVID-19 screening questionnaire prior to engaging in in-person operations with that individual. NAR recommends the following in response to those questions:
- Treat COVID-19 as a “disability” for purposes of the Fair Housing Act.
- While the issue of whether COVID-19 is a disability may ultimately be determined by a court, it is advisable to treat individuals with COVID-19 as protected under the Fair Housing Act.
- Real estate professionals are not required to provide assistance or housing to someone who poses a direct threat to the health and safety of others, but must consider whether a reasonable accommodation exists that would mitigate the threat.
- Real estate professionals should conduct an individualized assessment to determine whether a reasonable accommodation exists to mitigate the threat, such as virtual showings or requiring the individual to send a proxy to view the property.
- You may use COVID-19 screening questionnaires, but ask that all individuals complete the questionnaire.
- Do not ask about other underlying health issues that may increase an individual’s susceptibility to contracting COVID-19.
- Inquire in writing or verbally, but be consistent with your approach.
- While written documentation may prove useful in the event of future litigation to show that you routinely asked the same questions of all individuals, collecting and maintaining such personal information in writing creates a risk of disclosure through a data breach or otherwise.
- If you collect COVID-19 health information in writing, be sure to consult your state data privacy law(s) and best practices regarding the preservation and maintenance of data.
For more guidance on navigating fair housing issues during COVID-19, visit https://www.nar.realtor/coronavirus-a-guide-for-realtors#fairhousing.