The door is open for apartment landlords to consider whether to require tenants to get COVID-19 vaccinations, according to one of the biggest industry trade groups.

The National Multifamily Housing Council said members are now discussing whether owners would want to impose requirements in apartment buildings similar to those some businesses have implemented in offices. It comes as one Florida apartment landlord has begun requiring new and renewing tenants be vaccinated, a move that may face legal challenges but signals the latest decisions commercial property owners face in trying to protect tenants, visitors and their businesses in the pandemic.

“Our members, too, are having discussions about what [a potential vaccine requirement] means for their residents and their visitors,” said Paula Cino, vice president of construction, development and land use policy at the apartment industry group focusing on research and public policy, in an interview with CoStar News. “That conversation is still very much new and under development, but it really is the next step.”

Cino said she hasn’t heard of other plans to require tenant vaccinations beyond the case in Florida as the issue moves to the discussion phase among members. With NMHC’s membership of roughly 1,400 apartment professionals, any consideration is noteworthy because of the group’s influence in the industry.

Some of the biggest U.S. landlords are letting NMHC do the talking for them on the issue. Equity Residential, Greystar, Avalon Bay, Camden and UDR did not return requests for a comment from CoStar News.

The discussions come as the delta variant has surged throughout the United States for much of this year and is now responsible for more than 99% of coronavirus cases, according to the Yale School of Medicine. The variant has prompted President Biden to push for businesses with more than 100 employees to require vaccinations.

For office building tenants, the spike in cases attributed to the delta variant has thrown a wrench into plans to bring their employees back to the office. But for apartment landlords, delta is a new variable they need to consider in maintaining safe homes for renters.

And for the apartment industry, the choice made by Florida landlord Santiago Alvarez to require tenants signing or renewing a lease to be vaccinated is providing more to consider.

‘Exploding in Florida’

Alvarez, an 80-year-old Miami resident, owns and manages about 1,200 rental apartment units throughout the state, where the number of new coronavirus cases has surged at a pace not seen in any other state in the country besides Texas.

“The coronavirus is exploding in Florida,” Alvarez told CoStar in explaining why he took the step of requiring vaccinations. He said several members of his family have contracted COVID-19 and that he knows “too many parents” who have contracted or died from the disease.

So, when it came time to renew an unvaccinated tenant’s lease at the Royal Palms at Lauderhill in Lauderhill, Florida, one of eight apartment buildings Alvarez owns, he said he spoke with his lawyer on the legality of requiring his tenants to get vaccinated. He considered a recent executive order from Gov. Ron DeSantis, which bans businesses from requiring employees to provide proof of vaccination. Ultimately, though, the decision came down to safety.

“We have a responsibility and a duty to protect our tenants, and especially our employees,” Alvarez said.

While NMHC’s Cino said she doesn’t expect Alvarez’s requirement will spur a flurry of copycat landlords nationwide, whether he is allowed to maintain his mandate could influence others who are mulling similar provisions.

Legal documents identify Alvarez’s former tenant who refused to get vaccinated as Jasmine Mone Irby; Alvarez confirmed to CoStar that Irby was the unvaccinated tenant in question.

A letter from Irby’s lawyer, Timothy L. Grice, to Alvarez states that on Aug. 16, Irby got a reminder to renew her lease from the Royal Palms’ front office. On Aug. 23, according to the letter, Irby went to the office to renew her lease but wasn’t allowed to do so when she couldn’t provide a vaccination card.

After Alvarez refused to renew Irby’s lease, she left the apartment and filed a complaint with Florida’s Department of Agriculture and Consumer Services.

“I want to renew my lease,” Irby states in the complaint, which was obtained by CoStar. “I would like to do so without having to disclose my personal health information.”

In the letter to Alvarez from Grice, the lawyer said Alvarez is in violation of DeSantis’ executive order.

A letter to Alvarez from his lawyer, Juan C. Zorilla, states that Alvarez isn’t violating any housing discrimination laws because “vaccination status” is not listed among the protected classes of citizens.

Zorilla and Irby did not respond to inquiries from CoStar. Grice declined to comment.

CoStar received the original letter Alvarez sent to tenants of the Royal Palm apartments. That document, dated Aug. 15, stated that “all new tenants and tenants renewing their lease over the age of 18 must show their COVID-19 vaccination record card.”

Alvarez said he’s also requiring his employees to get vaccinated. When two of his employees refused, they were terminated, according to the landlord.

Housing, Employment Law Parallels

The legalities of landlords requiring tenants to get vaccinated, like many things related to the coronavirus, are still being determined in real time. The apartment vaccination question bears similarities to the national discussion about whether businesses are allowed to require consumers to get vaccinated, Jesse Wing, partner at law firm MacDonald Hoague and Bayless in Seattle, said in an interview. The firm has focused on individual civil rights cases since 1952.

Wing’s areas of expertise include fair housing, employment and disability rights. While he said he’s experienced with the legal issues of employers requiring employees to get vaccinated, he said that the legal system is navigating a new scenario in the context of housing in the pandemic.

One central issue emerging regarding apartments in the outbreak is that “landlords, like employers, have a right to protect their tenants from a recognized deadly contagion,” Wing said, but “whether they have a legal mandate to do that … is another question.”

Several sets of guidance that were issued about requiring vaccines in the workplace could potentially apply to housing. The Equal Employment Opportunity Commission’s guidance stated vaccination status is not protected health information and that an employer asking someone to get vaccinated is not violating the Americans with Disabilities Act. That’s important because in federal case law involving the Fair Housing Act, which bans discrimination in for-rent or for-sale housing, courts have drawn on the interpretation of the ADA, Wing said.

In the meantime, Alvarez said he hasn’t heard from Irby or her lawyer since the complaint was filed, and he feels he’s within his legal right to require vaccines. If he’s hit with fines, he said, he’ll go to court before he pays them.

“There is only one way to protect everybody: vaccination,” Alvarez said.