Health, housing, and “direct threats” during a pandemic / Jennifer K. Wagner.

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 United States created conditions and introduced practical challenges that left many disoriented—not only health care providers but also housing providers. Projected health care surges sent health care providers scrambling for ways to procure personal protective equipment for employees; to develop and implement clinical triage policies for the responsible and fair allocation of scarce critical care resources to COVID-19 and non-COVID-19 patients; and to make ethically and scientifically sound decisions regarding the conduct of research during the pandemic. Concurrently, individualized directives for self-quarantining and isolation as well as localized and statewide “stay at home” orders sent housing providers scrambling to make sense of their own ethical and legal responsibilities. Innumerable issues are worth examination, such as implications of moratoria on evictions and foreclosures, the triggering of force majeure clauses in contracts, insurability of pandemic-related damages and disruptions, holdover tenancies and delayed occupancies, and even 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 during a pandemic; 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 adequate housing problems in the U.S. before the next public health emergency arises.