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Pandemics and the Fair Housing Act: Best Practices

By Kerry Smith, Florida Realtors
Does COVID-19 qualify as a disability under the Fair Housing Act? Can agents ask customers about their health? Some answers aren’t clear and may require a court to decide, so make few assumptions – but it’s important to treat each buyer or seller in exactly the same way.

WASHINGTON – 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?

COVID-19 created a number of novel legal issues, including how members should apply their fair housing duties during the pandemic, according to the National Association of Realtors® (NAR). Given that COVID-19 may be disabling in the short-term and long-term – and even cause death – Realtors wonder whether COVID-19 is a “disability” entitled to protection under the Fair Housing Act – a concern that goes beyond the dangers it imposes by being highly contagious.

Members have also asked whether they may ask individuals to complete a COVID-19 screening questionnaire prior to engaging in in-person operations.

NAR recommends the following:

Treat COVID-19 as a “disability” for purposes of the Fair Housing Act

  • The issue of whether COVID-19 is a disability may ultimately be determined by a court, but it’s advisable now 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 they 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 all individuals to 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 NAR’s coronavirus webpage.

Source: National Association of Realtors® (NAR)

© 2020 Florida Realtors®

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