Advocacy Example: Reasonable Accommodation Request
What should I do?
Is this "victory" sufficient to provide the protection from COVID that would be provided by my request for reasonable accommodation?
If not, why not?
If not, then what should I do next?
I am interested in your ideas.
On November 5 I wrote to Mr Aaron Gornstein, the President of Preservation of Affordable Housing, the landlord for the apartment in Peabody where I live. I sought a reasonable accommodation, namely, to enforce their posted rule for masking and social distancing in the public areas of the building.
I won a victory, they recognized my right to a reasonable accommodation.
However their proposed remedies are to repeat the methods which have to date proved ineffective.
Here is the way I read their correspondence [Selected quotes]:
Letter from Flynn Law Group, Response for request for reasonable accommodation. Nov. 15
"...hereby granting your accommodation request. Management will reinforce its COVID-19 procedures currently in place, including requiring masks to be worn in common areas at all times, posting signage throughout common areas that masks are required to be worn in common areas at all times, and sending reminder letters to residents that these policies are still in effect."
Also received from Flynn Law Group, dated November 15. "IMPORTANT NOTICE AND WARNING / COMPLYING WITH MASK REQUIREMENT"
"Management urgently requires and expects the cooperation of all residents. Residents and their guests who continue to fail to comply with the mask and social distancing requirements are risking the health, safety, and well-being of our community. Please be considerate and respect the rights of others to the comfort and safety to this development. Management intends to enforce all CDC, State, and local mask and social distancing requirements and ordinances."
1) POAH has accepted that my request for reasonable accommodation is valid, and they will act. This is an important victory.
2) The actions that they promise are the same as what they have been doing, which has been ineffective.
3) There is no threat of enforcement.
4) If the city board of health were to enact a mandate, they would enforce.
Therefore, I urge the Peabody Health Department to continue appropriate pressure on Fairweather, and I urge the health department to mandate indoor masking in Peabody.
5) If POAH fails to make good on their promise, they may be held accountable.
Since sending this letter on November 5, when the COVID positivity rate in Peabody was 2.5%, it has risen to 5.78% as reported on December 2, 2021, more than double. The positivity rate is a leading indicator, followed by a rise in infections, hospitalizations, and deaths.
A new COVID variant, "omicron," has begun to spread worldwide; it is more infectious and may cause more severe disease.
But there had been no response from the POAH office until December 1. The housing management staff is short handed and has no working social services person. The landlord should be providing additional resources to enable effective management, protect tenants, and keep their promises.
A note on tactics
As Coordinator of the Stop Bullying Coalition, I am called on to suggest ideas and actions that aggrieved tenants can take to help themselves. For example, tenants in a subsidized apartment are angry because management makes promises but often fails to deliver, and they don't know how to get relief. They ask, "What can we do?" One of the first steps I recommend is to reach out to the landlord.
Here, I am concerned about exposure to COVID. Usually, I would recommend that a tenant is better served by working with other tenants on issues that are of common concern, rather than alone. However, this is a matter directly affecting my health and well-being, and in this situation I have determined to rely on my rights: for reasonable accommodation and peaceful enjoyment. Furthermore, the landlord has made explicit and implicit promises that they would enforce masking in the indoor public areas; by failing to act, they have broken their promise. While I am acting to seek my own rights, all other tenants will be equally served and protected when my petitions are granted.
Furthermore, there has never been established a whole-community sense of mutual consideration and responsibility. Indeed, the history of bullying demonstrated that, absent a positive support from management, any attempt to create a community structure would be met by hostility and aggression by some tenants and/or staff. We know from other housing and residential situations that when management takes a positive stand on bullying or COVID, these problems can be contained and eliminated.
This is a request for reasonable accommodation and for peaceful enjoyment, and a complaint for breach of promise.
November 5, 2021
Revised, November 27, 2021
[Mr. Aaron Gornstein]
President, Preservation of Affordable Housing (POAH)
2 Oliver Street, Suite 500
Boston, MA 02109
cc: Peabody Health Department
Dear Mr Gornstein,
I live at 20 Central St., Peabody, part of Fairweather and Preservation of Affordable Housing (POAH). My age and health conditions make me highly vulnerable to severe impacts of COVID.
I make a reasonable accommodation request, that management require and enforce masking as protection from transmission of COVID of all persons in the indoor common areas of the building at 20 Central Street, Peabody.
In addition, this request, that management require and enforce masking, is supported by my right of peaceful enjoyment, which you as landlord are obligated to protect.
POAH and the Fairweather management have recognized the harmful nature of bullying, smoking, and lack of COVID protections such as indoor masking in apartment buildings such as the Fairweather Apartments at 20 Central Street in Peabody.
However, despite the posting of signs and delivery of letters that acknowledge the responsibility of the landlord and their agents in each area—bullying, smoking, and masking—management does not work to motivate and educate people nor to enforce the rules. Brenda Hernandez, Sr. Regional Property Supervisor in her of October 8, 2021 letter to me asserted that,
"As you mentioned, unless we see a resident without the face mask/face covering is difficult to enforce. On 10/1/2021 we hand-delivered once again the notice from the site attorney, Frank [Flynn] [the name is Flynn Law Group] that outlines the importance of wearing face mask/face covering. We will continue to monitor and followup individually with any residents failing to comply."
POAH recognizes the serious danger of failure to mask indoors in common areas. Your attorney, Frank A. Flynn, Esq., wrote on October 1, 2021:
“Management urgently requires and expects the cooperation of all residents. Residents and their guests who continue to fail to comply with the mask and social distancing requirements are risking the health, safety, and well-being of our community. Please be considerate and respect the rights of others to the comfort and safety of this development. Management intends to enforce all CDC, State, and local mask and social distancing requirements and ordinances.”
But for some time now, there has been essentially no effective oversight. Management is rarely present on the property, and neither management or a tenant services person (notable by short stays, and short hours, and lack of outreach when there is such a person) strays from the office. Tenants have in the past suggested that management staff could use the front sitting room, which has a large window on the entrance lobby, as an office in order to observe tenants and visitors.
Because bullying has never been effectively dealt with, despite proclamations that it would not be tolerated, it is unsafe for a tenant to report a bad act by another tenant, for fear of retaliation.
Because management is not present, they avoid observing transgressions of smoking or failure to mask.
Regardless of any mandates by government, POAH and their wholly owned management subsidiary, and the Fairweather management is obligated to assure peaceful enjoyment. Over two-thirds of tenants and visitors observed in common areas are unmasked. Thus, the common areas pose a deadly hazard to all tenants who, by virtue of age or health conditions, are highly vulnerable to COVID. This threat is inconsistent with peaceful enjoyment.
Although it is not necessary for me to present details of my health status in requesting a reasonable accommodation, experience with COVID at 20 Central Street demonstrates the reality of the threat. During January, 2021, despite observing every precaution to protect against COVID, I was infected. During the time of possible exposure, I had not left the building. During the following months, at least 6 other people became ill with COVID, one of whom died, although we can’t know the cause, and given the many empty apartments, the rate of infection was about 9 percent.
Vaccination is a significant defense from infection but it is not perfect; thus, masking remains important. If everyone masks, the chances for transmission are reduced further. And the new variants of COVID can infect a person who has been vaccinated; asymptomatic individuals can transmit the infection. Not everyone is vaccinated. A major route of transmission is by aerosols which can flow between a corridor and apartments. Cigarette smoke is an aerosol, and if we smell smoke from apartments in a corridor, then we could equally be exposed to COVID, [which spreads through aerosols].
The CDC provides guidance on how to protect oneself from COVID infection.
“First, get vaccinated. Masking: People who have a condition or are taking medications that weaken their immune system may not be fully protected even if they are fully vaccinated. They should continue to take all precautions recommended for unvaccinated people, including wearing a well-fitted mask, until advised otherwise by their healthcare provider. If you are fully vaccinated, to maximize protection from the Delta variant and prevent possibly spreading it to others, wear a mask indoors in public if you are in an area of substantial or high transmission. In areas of high transmission, everyone should wear a mask in public indoor settings.—How to Protect Yourself & Others”
[Essex County is an area of high transmission according to the CDC. Currently, Peabody has a positivity rate of about 2.5%, thus the chance of an infection is not trivial.] [Updated data as of 10 November, reported November 4; based on October 17-30; 2-week positivity, Essex County: 2.97%; 2-week positivity, Peabody: 3.02% | Reported on: 11/11/2021, Time period: 10/24/2021 to 11/6/2021, 2.87] Updated on 27 November: The positivity rate in Essex County published on November 24, reporting on data from November 7-November 20 had risen to 5.31%.---Source: Mass COVID-19 Dashboard. Updated November 14; November 25. (posted here, 27 November). The 14-day positivity rate for Peabody, reported on December 9, 2021 is 6.48%, covering the period from November 21 through December 4, 2021.
Updated Peabody data November 18, based on October 31-November 13. 2-week positivity rate= 3.87%; 2-week Peabody positivity reported 25 November, 5.34%.
On August 23, 2021, the Director and members of the Peabody Board of Health wrote to Mayor Edward Bettencourt, Jr. and the Superintendent of Schools, with recommendations for mask use in public buildings. They cite several recommendations for masking indoors made by leading medical organizations. They note that even fully vaccinated persons can be infected. The Delta variant, which is now predominant, is twice as infectious as earlier forms of COVID. Elderly persons, who make up the majority of residents at 20 Central Street, are highly vulnerable to COVID, and should have the same expectation of protection as the Department of Health urges for children.
Thank you for your consideration and I look forward to your early action in response.
U.S. Department Of Housing And Urban Development,OFFICE OF FAIR HOUSING AND EQUAL OPPORTUNITY, Washington, D.C. May 14, 2004
JOINT STATEMENT OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND THE DEPARTMENT OF JUSTICE REASONABLE ACCOMMODATIONS UNDER THE
FAIR HOUSING ACT
Massachusetts Commission Against Discrimination (MCAD)