HUD Determines That Owner’s COVID-19 Visitor Policy Violated the Fair Housing Act

HUD recently signed a Conciliation Agreement/Voluntary Compliance Agreement with owners of a HUD-subsidized community in Fairhope, Alabama. The agreement resolves allegations and a HUD investigation into whether the owner’s policy prohibiting visitors under the age of 12 due to COVID-19 was discriminatory.

A resident, who had been providing childcare for her grandchildren, was allegedly told that she could no longer do so because it violated the owner’s policy, instituted due to COVID-19, prohibiting visitors under age 12.

Under the agreement, the owners will pay the resident $20,000 and rescind the policy prohibiting visitors to the property who are under the age of 12, and remove playground signage targeting anyone on the basis of age.

The Fair Housing Act prohibits housing providers from making housing unavailable and imposing discriminatory terms and conditions based on a person’s actual or perceived disability (including the perception that they are unsafe to associate with because of fear they may spread contagious disease (or their familial status or retaliating against a person for exercising their fair housing rights. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by recipients of federal financial assistance. In addition, the Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs or activities receiving federal financial assistance.

HUD views blanket bans on children’s visits to be discriminatory even during the COVID-19 pandemic.  Housing providers are able to take reasonable precautions to protect residents from COVID-19 (e.g., mask mandates, social distancing, etc.), they may not impose blanket prohibitions on any visits from children no matter what precautions are taken, thus keeping residents from visiting with family and friends in their own homes.

Owners and managers should keep this ruling in mind when establishing protective protocols at properties.