Airbnb’s “Health and Safety Requirements” statement regarding COVID and Airbnb stays is illegal on its face

[Till-and-Jutta0]

I would like to share this feedback from another Airbnb host with you. While it doesn’t necessarily reflect my own personal opinion, I think it’s worth mentioning:

I looked at this statement issued by Airbnb regarding it’s COVID-related “requirements” for hosts and guests pertaining to Airbnb stays, and I discovered that this statement is flatly and explicitly illegal on its face.  It is in explicit violation of US ADA (Americans with Disabilities Act)  and California State law, and likely most other US state laws. 

There are 2 primary problems with this statement by Airbnb which make it illegal on its face.

First, and most importantly, no public health agency, or other agency, entity, business or corporation may create regulations which violate the Americans with Disabilities Act (ADA) or state laws.  Airbnb’s statement that “All hosts and guests must agree to wear a mask or face covering when interacting in person” is flatly illegal in that it makes no exemption for those with a disability or medical condition which exempts them from face coverings.  If you look at any statement/guidelines/regulations on face coverings issued by a State or Federal public health department, you will see that they always observe ADA law and contain an exemption for those with a disability or medical condition. For instance, see this November 2020 California State public health guidance statement.

As indicated in this guideline, many individuals are exempt from all guidelines/regulations mandating use of face coverings:  “The following individuals are exempt from wearing face coverings at all times:  Persons with a medical condition…or disability that prevents wearing a face covering.”  As well, under ADA (Americans with Disabilities Act) and HIPAA (Health Insurance Portability and Acountability Act) such individuals are not required to disclose their medical condition to anyone.  

Thus, Airbnb, as well as any and all hosts, are expressly prohibited by law from requiring all guests to wear face coverings in any home or listing, as is the state of CA and/or any entity, agency or corporation.  Further, neither Airbnb, nor any host, entity or other agency, may inquire about any individuals’ private medical condition. 

Further, organizations and businesses can be fined up to $75,000 for the first ADA violation and $150,000 for any subsequent violation.  ADA violations consist of denial of service to those with a disability or medical condition, as well as unlawful inquiries into the nature of any individual’s disability or medical condition.  

Secondly, any entity, agency or corporation which is not a public health agency or medical professional,  is prohibited by law from issuing their own mandatory public health requirements or policy, and they may only reflect or support state or local public health department laws or policies.  Airbnb is not a public health agency.  They are not a medical organization.  They cannot make their own public health law or regulations.  They can only require hosts and guests to follow national/federal, state or other local public health guidance and regulations.  Given that state of California guidance/regulations pertain to outside a home only, Airbnb unlawfully exceeds its authority in attempting to make public health regulations that pertain to the inside of anyone’s private home. 

[Ann72]

I agree, @Debra300 - good points!

Still, asking Airbnb to police smoking is similar, since each state has environmental regulations, and there are federal regulations as well.  If lingering cigarette smoke were to be deemed an environmental danger, it would have to be regulated by the government, not Airbnb.

[Till-and-Jutta0]

Here follows my own personal opinion, resulting from hosting with a private room.

This issue has two aspects:

• The legal matters – what are we allowed to do?
• The common sense – what we should do?

1) Legal matters

First of all: I’m a German citizen and host; I have no idea about US regulations. And Airbnb can’t know all local regulations; they have just elaborated this enhanced Covid protocol, trying to ensure the safety of hosts and guests worldwide, and to enable travelling in these difficult times. I can’t judge whether it’s against US law or not.

My country regulates the stay in accommodations of all kinds and requires that the hosts will compile a specific hygiene policy for their accommodation, regarding e.g. the wear of masks, ventilation, cleaning, disinfection, distance, and contact registration.

On one hand there might be exceptions for the duty to wear masks for a certain group of people, so they cannot be excluded from basic needs such as buying food. On the other hand there is the freedom of contract: We state in our hygiene policy (which is part of the house rules) that we require guests wearing a mask when we meet. Staying at our place – as well as touristic travels – is not a basic need, and we hosts don’t accept guests not complying with our rules.

2) Common sense

We must do everything reasonable to stop this pandemic ASAP, to stop people dying and to start the hosting business again.

IMHO a homestay is no superspreader event. Even if there is an infection, authorities can follow and cut the contact chain quite easily.

Private and public gatherings, such as parties (also in Airbnbs), sports events, political assemblies etc. are considered to be potential superspreader events and thus require prohibition or limitations.

Our hosting experience during the pandemic is definitely different from the time before: no tourists, no short-term-stays, but people with a need to stay, for several weeks or months. Until now we had only guests who were interested themselves to be super careful and who followed all rules. That means we usually don’t share rooms. But it happens that we meet and greet, and if the distance is below 3 meters we wear masks.

We got some booking requests from people, where we found out during the communication, that we must not host them due to our local tourist ban, and that these guests didn’t belong to the group of people accepting the Covid rules. In these cases I wish a better a better Airbnb support, either for denying such requests or for cancelling those bookings. That’s an issue we are currently discussing in the board.

I see a certain parallelism to the discussion about accepting vaccinated guests only.