Last week, Chicago's Seminary Properties adopted an unusual new coronavirus policy.
According to an email obtained by Chicago, the large North Side landlord is requiring all tenants to contact a medical professional if they believe they may be sick or experiencing COVID-19-like symptoms. Following an examination, their doctor must provide the management company with the patient’s diagnosis — in writing — along with a specific timeframe during which access to the tenant’s apartment should be restricted from maintenance workers, inspectors, and prospective renters.
“We are taking extreme measures to do our part to slow the spread of COVID-19,” wrote management in an email explaining the policy change sent on March 19.
These rules struck at least one renter in Uptown as "fishy."
“I understand the desire to protect people but I don’t think it’s appropriate to be forced to disclose health information to my landlord,” said the tenant, who spoke on condition of anonymity. Seminary Properties declined to comment for this story.
Compelling a renter to get a doctor’s note with details about their medical status certainly sounds invasive. But does it violate the law? The short answer is, well, maybe.
“I can’t imagine that’s legal,” says Joan Fenstermaker, a landlord-tenant lawyer in Chicago. “It would have to be part of a written lease and I’m suspicious that would be legal in any case even if it’s in a lease.” Either way, the tenant says there were no such provisions in lease from Seminary Properties.
The only time a tenant is required to make a medical disclosure to a landlord is under special circumstances, such as for the accommodation of service animals, says Fenstermaker. Meanwhile, HIPAA laws protect the privacy of patients and their healthcare data, while the Fair Housing Act prohibits landlords from discriminating against those with medical conditions or disabilities.
But other lawyers and tenant’s rights organizations can’t seem to agree, in part because today’s leases aren’t designed to acount for a global pandemic of this scale, which has killed tens of thousands globally and largely shut down the public sphere.
“I don’t think our laws have anticipated this type of situation,” says Charles Drennen, an attorney with Chicago Tenants Rights Law. “It’s another way in which we’re not prepared for this type of thing.”
Many have argued that the COVID-19 crisis has laid bare the holes in America’s health care system, social safety net, and emergency preparedness. Similarly, the pandemic may also be opening a Pandora’s box of issues in our landlord-tenant laws.
Currently, the biggest sticking point is whether coronavirus should be classified as an individual health issue or as an "act of God," or "force majeure," a legal term for unforeseeable political or natural events that prevent a party from fulfilling a contract. For example, a force majeure clause in a lease could exempt a tenant from missing a strict move-in date or protect them from being evicted.
“Generally speaking, it says that your performance under a lease can be excused by an act of God such as hurricanes, earthquakes, [or] strikes, but can also include terrorist acts or war,” says Chicago attorney Eric Macey. “But the problem is that most contracts don’t cover quarantines or pandemics.”
There's already a precedent for the use of force majeure in China: Earlier this month, 4,811 force majeure certificates were issued due to the coronavirus outbreak, exempting companies from $53 billion in US dollars in contractual obligations. But in this case, what happens in China stays in China, which isn't governed by English common law.
Confused? So are a lot of observers, who say that force majeure could be influenced by all sorts of factors. Among them: When did local governments impose shelter-in-place directives? Was a travel ban in place? And does a widespread economic crash count as an act of God?
Ultimately, it could be up to the courts to decide. But in the meantime, renters can expect to see more pandemic and quarantine-specific clauses in new leases.
In the longer term, pandemic-specific legislation is the best solution, says Macey.
“There’s a lot of issues to consider here and I think it will be looked at it on a state by state basis and [in] each municipality. What happens in Kankakee may be different than in Chicago and other major metropolitan areas.”