The news recently has been abuzz with various stories about the Ebola virus and those who have contracted or been exposed to this disease. Quarantines of 21 days have been imposed on persons who have had contact with Ebola patients, including medical personnel.
Everyone knows the story of Dr. Thomas Eric Duncan, a Liberian national, who was the first person diagnosed with the disease in the United States. He had cared for a pregnant woman suffering from Ebola in Liberia. Unfortunately, he succumbed to the disease, and two nurses who treated him at Texas Health Presbyterian Hospital contracted the deadly virus. One was nurse Nina Pham. Her dog, Bentley, not only was quarantined as a result of Pham’s infection, but was also twice tested for the virus. Nina and Bentley are now in the clear.
Although Nina and Bentley had a happy ending, the same cannot be said for the thousands who have died in the West African nations of Liberia, Sierra Leone and Guinea. The outbreak of the Ebola virus is an unprecedented health situation for the U.S. due to the severity of the disease, even though officials have said the likelihood of contracting Ebola is extremely low unless there is direct and unprotected contact with the bodily fluids of a person who is sick with Ebola. The fear of this deadly disease is a powerful force.
Balancing rights
Protecting the rights of individuals when also trying to protect the public from exposure to a devastating disease like Ebola is challenging.
Some states have looked to balance public safety with the need to avoid deterring medical professionals from volunteering in West Africa. In the name of protecting the health of the general population, the governors of New York and New Jersey imposed mandatory 21-day quarantines on medical workers who had contact with Ebola patients in West Africa but did not show symptoms of the disease. A nurse returning from Sierra Leone was quarantined in a tent set up inside a Newark hospital, with a portable toilet but with no shower. The nurse called this procedure “inhumane,” and the governors later modified their policies to permit persons returning from West Africa with no symptoms to be quarantined at home with two daily visits from local health authorities. Illinois and Florida may impose similar policies.
Quarantines of humans have not been imposed in this fashion in the U.S. since at least the last century. In the name of public health and safety, these policies impede individuals’ freedom to travel, work, enjoy privacy and carry on other normal activities.
In the real estate arena, the Ebola balancing equation may arise with regard to an individual’s fair housing rights. There are no Ebola cases in Wisconsin. But what would you do if a person who recently arrived from West Africa wanted to buy a condominium or rent an apartment?
Fair housing
The federal Fair Housing Act prohibits discrimination on the basis of race, color, family status, disability, sex, national origin and religion. Wisconsin's Open Housing law prohibits discrimination based on marital status, ancestry, source of income, sexual orientation, age, and status as a victim of domestic abuse, sexual abuse or stalking.
Representatives of the National Association of REALTORS® and the U.S. Department of Housing and Urban Development concur that fear of Ebola is no justification for discrimination against someone based on their national origin, that is, because they are from West Africa. Discrimination based on national origin is prohibited.
A property owner, property manager or real estate licensee may feel that, for the protection of other residents, it would be a good idea, for example, to ask a prospective condominium buyer or a rental applicant if he or she has traveled to West Africa or been exposed to Ebola. These real estate professionals, however, should be mindful to not violate any fair housing protections based on national origin, race, disability or other protected classes.
The key to screening is to always be uniform, consistent and fair. Landlords and property managers typically screen prospective tenants with respect to their income, credit, references and eviction records, using a written tenant application form. The landlord or property manager should have predetermined consistent standards in each of these categories that are applied fairly to all. It may be beneficial to provide these standards, in writing, to all applicants. All prospects must be screened in a fair and nondiscriminatory manner to avoid accusations of fair housing discrimination. Any time an applicant is rejected based upon an immutable characteristic or an intuitive judgment, there will be a risk of a fair housing complaint. Thus if Ebola inquiries are desired, the question must be asked of all prospective residents and buyers with a consistent policy in place for how prospects who answer affirmatively are treated.
Direct threat
If the person files a fair housing complaint in a rental situation, saying they were refused housing because they are from Sierra Leone, the defense that the applicant poses a direct threat to the health or safety of others may come to mind. However, that defense may be difficult to assert without proof of the health threat, or in other words, proof that there was a risk of transmitting Ebola to others.
Wis. Stat. § 106.50(5m)(d) provides, “Nothing in this section requires that housing be made available to an individual whose tenancy would constitute a direct threat to the safety of other tenants or persons employed on the property or whose tenancy would result in substantial physical damage to the property of others, if the risk of direct threat or damage cannot be eliminated or sufficiently reduced through reasonable accommodations. …” Owners can refuse to rent to an applicant if there is documented information to substantiate that the applicant posed a direct threat to the safety of other tenants, thus allowing the owner to refuse the applicant under Wis. Stat. § 106.50(5m)(d). A similar provision is found in the federal regulations in 24 CFR § 100.202(d).
In reality, it is hard to imagine an Ebola issue arising in a housing situation that would not first be addressed by the Department of Homeland Security (DHS) or public health authorities. The question of whether a person has been traveling in West Africa is one for the public health authorities to ask.
Airports
The first line of defense against Ebola involves travelers arriving from Liberia, Sierra Leone or Guinea. The DHS requires all passengers arriving from Ebola-affected countries in West Africa to travel through a handful of designated U.S. airports as part of the measures to control the spread of Ebola. All passengers whose travel originates in Liberia, Sierra Leone or Guinea are required to fly into New York's JFK; Newark, N.J.; Washington, D.C.'s Dulles; Atlanta; or Chicago O'Hare. Those passengers are subject to secondary screening and added protocols, such as having their temperature taken, before they can be admitted into the United States. On average, 150 passengers per day arrive in the U.S. from the three West African countries.
The Centers for Disease Control and Prevention (CDC) has procedures in place to try to prevent ill passengers from getting on a plane in West Africa as well as protocols if an ill passenger were to travel to the United States.
Ebola virus disease
The Ebola Virus Disease (EVD) causes hemorrhagic fever. Symptoms of EVD virus include fever, headache, joint and muscle aches, diarrhea, vomiting, stomach pain, lack of appetite and abnormal bleeding. Symptoms most commonly start 8-10 days after coming into contact with the virus but can occur as early as two days to up to 21 days after exposure. Unfortunately, there are no available medications to cure Ebola, and there is no vaccine to prevent Ebola.
Ebola can only be spread from one person to another when someone has symptoms. Ebola is not spread through food, water or the air or through casual contact with someone who has traveled to countries in West Africa. The risk of catching Ebola for the general public is extremely low in the United States except for health care workers providing care for Ebola patients. Ebola is spread by direct contact with blood or other body fluids of an infected person who has symptoms of Ebola.
Resources
Debbi Conrad is Senior Attorney and Director of Legal Affairs for the WRA.