We draw a parallel with rental housing

We’ve been unable to find any “ how-to” manual on how to be a landlord, operate a landlord-tenant law firm, or for that matter, run any kind of business during a pandemic. The reality is there have been many grey areas in the law. Normally, laws have had time to be ironed out in the courts, but we have not had that luxury of careful, studied review of government edicts. 

With that in mind, we were intrigued to come across this article that begins with a provocative question: “Can I require my employees to be vaccinated?” There is no clear answer, and we can relate. 

Our fraternity of landlord attorneys has become friendlier competitors during the pandemic by musing back and forth through email chains about interpretations of eviction moratoriums and other edicts. Sometimes, there have been fifteen different opinions because we are all in uncharted territory. Practicing landlord-tenant law during these bizarre times has been part social engineering, part law, and part “best guess.” We have attempted to triangulate our individual opinions, but let’s move onto the question at hand. 

If you ask California’s Department of Fair Housing (DFEH), it is legal under civil rights laws for businesses, including property management companies, to require workers to get vaccinated, so long as it does not infringe on civil rights. 

See the agency’s guidance on what employers can and cannot do (PDF) »

There is some sentiment that an employer cannot compel its employees to get vaccinated because the FDA has stopped short of granting full approval to any of the cocktails of vaccines. Instead, the FDA has authorized the vaccines for emergency use and thus, vaccination in the workplace is left up to the individual themselves. But is this technicality splitting hairs? 

In her blog, Harvard Law School Professor Dorit Rubinstein Reiss submits that while there is little precedent on this, most judges would take the side of an employer that requires workers to get vaccinated. It’s shaky legal ground with arguments for and against mandates. 

As the pandemic persists, so does the Constitution. 

DFEH makes it clear that an employer who mandates a shot in the arm has an obligation to uphold the civil rights of their employees, and we cannot help but make a comparison to fair housing laws. Problems arise when individuals fall into an ever-expanding “protected class.” 

Just like a landlord cannot deny a tenancy based on a disability or religion, it’s entirely possible that a worker can object to inoculation because he or she is disabled or holds a religious belief. And just as housing providers must offer a reasonable accommodation to protected classes, employers can make reasonable accommodations to employees who are adamant about not getting vaccinated based on a religious creed or other assertion, weighing, of course, the employee’s civil rights against the safety of the rest of the workforce or the general public. 

Such a modification might involve shifting the worker into another position, allowing him or her to work for home, or some other solution. This balancing act, however, should be delicate. 

In an earlier blog on using background checks in tenant screening, we urged landlords and property managers to apply the same standards in evaluating a tenancy, keeping the policy consistent with each and every applicant. In like fashion, we think that if employers require vaccinations, it should not be exclusionary. For example, if workers are told they have to be inoculated but supervisors get special treatment and are exempted from the requirement, the employer can run into trouble. 

DFEH points out that if making a reasonable accommodation would result in an undue hardship, the employee could be excluded from the workplace. So, just like housing, the key word is “reasonable,” and that will be determined on a case-by-case basis. 

Constitutional lawyers we are not, but what we can say with certainty is that the pandemic has raised weighty legal issues that haven’t been tested until now. Whether or not employers can tell their workforce to get vaccinated is just one. 

Where do emergency powers of government end? Can the executive branch rewrite state law? What is the liability of landlords who are responsible for providing a habitable apartment but the tenant refuses access to the rental unit? Does the Centers For Disease Control and Prevention have the authority to issue eviction moratoriums? What is a landlord to do when an infected resident does not wear a mask and is spreading the virus to other residents? 

Riddles are abound with no easy answers. 

Bornstein Law