Health, housing, and ‘direct threats’ during a pandemic

Wagner, Jennifer K

The COVID-19 pandemic brought into stark relief the intimate nexus between health and housing. This extraordinary infectious disease outbreak combined with the astounding lack of a clear, coordinated, prompt, and effective public health response in the U.S. created conditions and introduced practical challenges that left many disoriented-not only health care providers but also housing providers. Innumerable issues are worth examination, such as implications of moratoria on evictions and foreclosures, force majeure contract clauses, insurability of pandemic-related damages and disruptions, holdover tenancies and delayed occupancies, and possible abatement of rent or homeowner/condominium association dues in light of closed common facilities (such as fitness areas) or reduced benefits to be enjoyed with residential property; however, this article focuses on fair housing law and the ``direct threat'' exemption; finds it unlikely that COVID-19 is a disability, likely that the ``direct threat'' defense is available, and both determinations to be case-specific inquiries dependent upon rapidly-changing scientific understanding of this disease. By highlighting adequate housing as a human right for which the government has primary responsibility for ensuring its achievement, this article underscores the importance of finding a holistic solution to public health and housing problems before the next public health emergency arises.