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Can a Landlord Require the COVID-19 Vaccine?


Sep 21, 2020 by Marc Rapport

When a COVID-19 vaccine does arrive, will landlords be able to require them of tenants? After all, it would seem like a matter of public safety, which property owners and managers are typically held responsible for as a result of taking money for providing the space.

We won’t know until it happens whether local, state, or federal authorities will require the COVID-19 vaccine, and to what extent.

But just like current mask regulations, the vaccine when it becomes available is likely not to be subject to uniform regulations in terms of who must receive it.

And if past is prologue, the reality around existing vaccines provide little guidance except to expect disagreement and a patchwork of rules and enforcement.

This personal injury attorney says, no, nope, can’t do it

So, can a landlord require tenants to get the COVID-19 vaccine? One San Diego-area personal injury attorney is clear on it.

"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," says Evan Walker of the Law Office of Evan Walker in La Jolla, California.

But landlords are required to provide a safe living environment too, right? And there’s a long history of requiring vaccines, from smallpox to polio to annual flu shots, as a condition to attending school and going to work in many settings.

So, here’s some perspective from some other legal eagles on what is likely to be a thorny sideshow to the spectacle of administering a life-saving vaccine that can halt in its tracks the most widespread deadly epidemic to hit America in 100 years.

This NYC attorney says yes, vaccines can be mandated and to expect legal cover

"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," says David Reischer, a New York City attorney and CEO/founder of ProBono.LegalAdvice.com at http://www.legaladvice.com.

"In 1905 the Supreme Court addressed a similar issue of mandatory vaccinations 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 it 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."

A law school professor says look at your leases and your lawmakers

"There’s a lot of uncertainty here. It’s important, though, to note that one thing is clear: This is not a HIPAA situation," stresses Professor Jacqueline Fox who teaches health care law and policy, public health law, bioethics, and torts at the University of South Carolina School of Law in Columbia, South Carolina.

"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. Act like an idiot with that information at your own peril.

"As for requiring the vaccine, it’s really uncharted territory in that we really 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 else around them. But this is different, obviously.

"Do you modify your leases to include this 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.

"So, yes, there’s going to be a lot of complications and a lot to be worked out here, but there’s one good thing about it, if you can call it that. You don’t have to decide soon. There is no vaccine right now and there’s a lot of uncertainty, obviously, about when one will be that widely available.

"In the meantime, if you feel strongly about it, now is the time to lobby your elected officials about it, before the vaccine gets here. If you want its distribution, and the pandemic itself, to be managed by public health experts then now is the time to speak up, and now is the time to think about who you elect."

A view from up north: Toronto attorney doubts courts would allow it

"It would be very unlikely and uncommon for a federal, provincial, or state government to legally mandate vaccinations, and any attempts to do so would certainly be met with court challenges. In Canada, the Charter of Rights and Freedoms would likely be used as a defense," adds Angat Saini of Accord Law in Toronto who practices real estate, business, and immigration law.

"We can also look to history for examples of how governments, institutions, and businesses reacted in similar circumstances. During the H1N1 pandemic, there was no legally mandated vaccination program in Canada. However, we have seen instances where employers, particularly those in the healthcare industry, have required their workers to get tested and/or vaccinated, as a part of their employment requirements.

"That said, I would find it difficult to believe any court would allow a landlord to impose similar restrictions on tenants."

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