Don’t Require COVID-19 Testing as a Condition of Occupancy

According to experts, controlling the spread of the pandemic demands finding the infected and isolating them until they can no longer spread the disease, alongside broader measures like social distancing. With an untold number of asymptomatic carriers, the only option to find out who truly has the virus is to test. As they reopen, many universities are requiring students to undergo a mandatory COVID-19 test upon their return to campus. With the increased attention given to testing, you may have considered requiring applicants to undergo a COVID-19 test as a condition of occupancy.

According to the latest update to HUD’s COVID-19 Q&A, there is no regulatory or statutory basis under the Section 8, 202, or 811 programs for an owner or agent to require tenants to take a health or medical test and disclose results as a condition of tenancy. Owners and agents can encourage, but not require, tenants to get testing and disclose the results. In addition, with regard to cost, HUD says tenant testing cannot be classified as a project expense.

If you believe, however, that there’s a basis in your state or local law to require testing and disclosure, HUD asks that your attorney provide the information regarding the legal authority to do so to your local HUD Multifamily Office.