Frequently Asked Policy & Legal Questions (COVID-19)

Lots of policy and legal related questions been coming into the Association regarding coronavirus:

The Governor’s emergency declaration included expanded and mandatory sick leave for various market sectors including“community living facilities”. Does that mean apartment complexes?

“Community living facilities” were not defined in the Governor’s statement nor is it a phrase defined by Colorado statute. However, “community living” does appear routinely in Colorado statute and is always in the context of group homes for the elderly, veterans and disabled. One should expect Community Living Facilities to be interpreted narrowly to include facilities that offer some level of assistance (predominantly medical) or shared living space (like a cafeteria), but not merely a collection of apartment units with no living assistance. Presumably, if the Governor had meant to include apartments, he would’ve said so more directly.

Is refusing to show someone an apartment or refusing to respond to their maintenance requests because of concerns over sickness a fair housing violation?
Sickness (at least when it’s temporary) is not a protected classification. Therefore, refusing to offer services to someone because they are believed to be contagious is not a direct fair housing violation.

The fair housing problem with refusing service based on sickness would come from a plaintiff claiming the refusal of service was based on some other protected classification and that the landlord’s claim of fear of sickness was either fabricated or selectively applied to people of a particular protected classification.

As with all fair housing defense, our industry attempts to reduce employee discretion, institute policies of defensible sameness and make a written record of those policies to defend against claims of differing treatment. These strategies are difficult when talking about degrees of suspected sickness, particularly when none of the people making the assessment will likely have any level of medical expertise. If you’re going to go down the path of giving employees discretion to not do business with customers based on perceived risk of infection, you’ll have to give a lot of thought to a written definition of someone that is too dangerous to do business with. An example of such a definition is:

In order to minimize risk to other residents of the community and the management staff, staff will limit their direct contact with persons and units of persons experiencing respiratory symptoms such as fever, cough, shortness of breath, sore throat, runny or stuffy nose, body aches, headaches, chills or fatigue. Residents should wait for at least twenty four (24) hours after symptoms subside or have been cleared by a doctor to return to public activities before initiating or requesting contact with other residents or our staff.

A more defensible policy would focus on blanket reduction in services (to all persons) to eliminate the rather subjective and difficult to document distinctions of the status of the customer’s health.

The analysis changes a bit if the condition is permanent and can be claimed to be a disability requiring a reasonable accommodation. However, most of the symptoms causing concern to Association Members are not associated with traditional disabilities and an analysis of the proper response to a requested reasonable accommodation is not the issue on most people’s mind. If a resident claims their symptoms are the result of a more permanent disability rather than the flu, they should be asked to complete a formal request for reasonable accommodation with certification of the disability and disability related need.

Does fear of the virus relieve a Landlord from obligations to provide maintenance under the Warranty of Habitability?
Mostly no. The Warranty of Habitability statue requires a landlord response to the tenant’s notice of a covered maintenance problem within 24 of receipt. The response must include:

• The landlord’s intentions for remedying the condition.
• An estimate of when the remediation will commence.
• An estimate of when the remediation will be completed.

The statute then requires commencement of the work within 24 or 96 hours depending on the category of the maintenance issue.

However, what constitutes commencement of the work and when the work needs to be completed are largely undefined.

By using the warranty of habitability notice to disclose an estimate of the commencement of the work to include reduced or delayed contact with the resident and the unit and an estimate of completion to include disclosure of delays based on limited availability of materials or persons because of illness concerns, a landlord stands the best chance of having a legally defensible position for reduced or delayed maintenance response.