In August, Florida landlord Santiago A. Alvarez enacted a policy requiring his tenants to get vaccinated for COVID-19—or face eviction. Alvarez, who owns eight apartment complexes with 1,200 units total, decided to require vaccines after 15 of his tenants died of the virus. His new policy also states that applications from prospective tenants will automatically be denied if the applicants aren’t vaccinated. In addition, if any tenants remain unvaccinated when it’s time to renew their lease, they’ll have to move.
Alvarez’s rule not only applies to tenants, but to his employees as well. All employees must show proof that they’ve received at least one dose of the vaccine. He is the first known large-scale landlord in the U.S. to impose a vaccine requirement for tenants, as well as employees.
According to Alvarez, his primary goal is to keep his tenants and employees healthy; in addition to the 15 who died, many of his tenants became ill at one point with the virus. The reaction to his new policy has been divided, with at least two tenants stating they had contacted local eviction defense attorneys to discuss challenging the rule in court.
Are Alvarez’s Actions Legal?
While it’s understandable that Alvarez wants to protect his tenants and employees, is his new policy legal? This remains unclear, especially since Florida is currently under an executive order from Governor Ron DeSantis prohibiting businesses from requiring their customers to be vaccinated. Governor DeSantis has repeatedly stated that he feels vaccine passports violate both civil liberties and Health Insurance Portability and Accountability Act (HIPAA) rights.
DeSantis’ press secretary stated they conferred with the governor’s legal counsel, who felt Alvarez’s policy is in direct violation of the vaccine passport ban. Each violation of the ban (which the Florida Department of Health will start enforcing on September 15) could result in a $5,000 fine.
In contrast, Alvarez’s attorney states that the rule doesn’t violate the governor’s ban, as the current ban applies only to businesses requiring vaccine documentation from “patrons or customers”. Tenants, he argues, are not patrons or customers, which he defines as transient and only on the premises for a temporary period of time. This could be seen as a loophole in the governor’s ban—and one that may force the courts to decide whether a tenant is equivalent to a customer.
Attorneys Weigh in On Whether Landlords Can Require Vaccines
The issue of whether landlords are legally able to require their tenants to get vaccinated has been in question since the news that a vaccine would be available. While the Florida case is certainly more complicated due to the state vaccine passport ban, the core issues of civil liberties and privacy remain a national concern. To further complicate the issue, landlords are legally required to provide a safe living environment for their tenants—which could be interpreted as taking measures to minimize COVID-19 at their properties.
Last fall, three lawyers weighed in on the issue of whether landlords could impose vaccine requirements:
- “Fascinating question. My immediate reaction, however, is no. Doing so invades constitutional rights of privacy and arguably is a civil battery. I would think it would expose the landlord to civil liability, not to mention violating a likely host of civil rights.” – Evan Walker, Attorney at the Law Offices of Evan Walker in La Jolla, California
- “It is certainly quite possible that landlords could make vaccination a mandatory condition of a tenancy. A requirement that landlords mandate vaccination in order to rent a property would be permissible under existing federal law. In 1905, the Supreme Court addressed a similar issue of mandatory vaccination imposed by the government in regard to smallpox in the case ‘Jacobson v. Massachusetts.’ In this case, the court ruled that the ‘police power’ of the state to protect public health and safety permitted the legislature to impose a mandatory vaccine.
The court explained that such regulations are not a violation of the 14th Amendment right to liberty because there is a limitation by which every person is necessarily subjected for the ‘greater common good.’ This decision still prevails even today despite occasional injurious results from vaccinations due to the impossibility of assessing whether a specific person can be safely vaccinated or not. Federal and state laws will likely extend the Jacobson ruling to a mandatory vaccination for COVID-19. Landlords certainly will be afforded legal protection if they discriminate based on whether a person has a vaccination against infection from COVID-19.” – David Reischer, New York City Attorney and CEO/Founder of ProBono.LegalAdvice.com
- “There’s a lot of uncertainty here. It’s important, though, to note that one thing is clear: This is not a HIPAA situation. A landlord is not typically a tenant’s healthcare provider. HIPAA rules only apply to healthcare providers. Landlords already collect a lot of private information about their tenants… As for requiring the vaccine, it’s really uncharted territory in that we 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? Landlords want to abate public health risks in their buildings. An example would be cooking meth. Besides being a criminal activity, it’s really dangerous to everyone around them. But this is different, obviously. Do you modify your leases to include the vaccine? Do you restrict the rules to your common areas like fitness centers? You do have some basis to require a vaccine, certainly, but you also have to consider why you want to do it.” – Jacqueline Fox, Professor of Health Care Law and Policy, Public Health Law, Bioethics and Torts at the University of South Carolina School of Law in Columbia, South Carolina
Can Landlords Ask About Vaccine Status?
While the question of required vaccinations remains murky, can landlords ask their tenants about vaccine status? “The short answer is, most likely yes,” said Wendy Parmet, a law professor and director of the Center for Health Policy and Law at Northeastern University. According to Parmet, HIPAA doesn’t apply to landlords; it’s intended to keep health care providers, human resource departments, and insurance companies from spreading private medical information.
According to Nicole Huberfeld, a professor of health law, ethics, and human rights at Boston University’s School of Public Health, landlords can legally ask about vaccine status but tenants aren’t under a legal obligation to disclose whether they’ve had the vaccine.
Navigating Vaccines at Your Properties
Like all aspects of COVID-19, this is fairly uncharted territory. While there have been suggestions from the federal government that vaccines can be required by employers, little to no official guidance has been provided to the rental housing industry. According to a July 26 memo from the Department of Justice, the law “does not prohibit public or private entities from imposing vaccine requirements.” This statement does make it appear that a private landlord would be legally within their right to require their tenants to be vaccinated.
Legal experts continue to be divided, with some saying it’s within a landlord’s legal rights and others saying it’s an over-extension of power in the landlord-tenant relationship. Beyond the question of infringing on tenant’s rights, there’s also the issue of enforcement. The more tenants you have, the harder vaccine requirements will be to enforce—and the blowback from tenants could potentially result in higher turnover.
Attorney Danielle Lesser, chair of Morrison Cohen’s Business Litigation practice says that landlords could potentially tweak lease clauses that deal with the types of identification required to include proof of vaccination, but they would need to include language that doesn’t infringe on a tenant’s right to enjoy their space. “As you see employers require vaccinations in increasing numbers, I don’t think it’s a leap to think we’ll start to see landlords regulate access to their buildings,” she said.
Until a legal consensus has been reached, this remains a sensitive and unclear issue. If you’ve been considering vaccine-related policy changes to your rental properties, the best course of action may be to consult with a local lawyer who specializes in Landlord and Tenant law.
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