Published on: February 16, 2021
By Mark Einhorn
Last year, boards and managers were asking what they should do to reduce COVID infection risks in their communities, while waiting for the vaccines that would provide protection from the virus. Now that the vaccines are becoming available, some associations are wondering if they should require residents, employees and vendors to be vaccinated. As with just about everything in the condominium world, it’s complicated.
To put the question in some sort of perspective, these are still early days. The vaccine roll-out is proceeding slowly and there is still much we don’t know about how much protection the vaccines will provide, for how long, and how effective they will be against new forms of the virus that are beginning to spread. It is too soon to be making decisions based on what is still insufficient information. But it is not too soon for boards to begin thinking about vaccine-related issues and concerns.
Those concerns involve three different groups and the considerations for each are different. Vendors are the least problematic. When boards are hiring contractors, they can certainly give preference in the selection process to companies that require vaccinations for their employees. Boards could also make vaccination a requirement for beginning or resuming work for which a contract has already been negotiated, as long as the contract doesn’t prohibit it. For example, you could tell your landscaper or the company you’ve retained to repair your roof that workers must provide proof of vaccination before coming on site.
But there are practical issues to consider:
- The vaccine isn’t yet widely available. Some workers may not have been vaccinated and some may refuse vaccination for medical or religious reasons their employers must respect.
- Requiring vaccination may limit the number of vendors available to provide the services the association needs and potentially increase the cost.
- Vendors with whom the association has an existing relationship may insist that you can’t enforce a requirement that isn’t in the contract, possibly triggering a legal battle that boards may or may not want to fight.
EEOC Guidance for Employers
Boards will face similar questions when dealing with workers they employ directly – managers or maintenance staff, for example. But the issues will be even more complicated. The (EEOC) has issued some guidance, which, while not necessarily binding on the courts, will probably be influential when vaccine requirements are litigated, as they almost certainly will be. Key provisions of the guidance state:
- Employers may require vaccination for their employees only if workers pose a “direct threat” to the health or safety of others. A direct threat assessment depends on the likelihood of the risk, its imminence, its duration, and the severity of the potential harm to others.
- Even if a direct threat exists, employers can require vaccination only if there is no “reasonable accommodation” that will enable workers to perform their jobs without risk to others.
- Workers must grant exceptions to a vaccination requirement for employees who have a medical disability (an allergy for example) or a religious objection that prevents them from being vaccinated.
The bottom line: You may be able to require vaccinations for employees, but you will have to grant exceptions to workers who qualify for them and you have to consider the very real possibility that it may be some time before some employees are able to obtain shots, even if they are willing to get them.
Vaccine Rule for Residents?
As you might suspect, requiring residents to be vaccinated raises the most complicated questions with the fewest clear answers to them. The first question – the one you should ask about every policy or rule you are considering ─ is whether the board has the authority to impose it. The logic that led many associations to close their amenities and require residents to wear masks at the height of the pandemic would seem to apply to vaccine requirements, because the goal – reducing infection risks – is the same. But there are some critical differences, primary among them:
- Most communities that imposed mask requirements or limited the use of amenities were following mandates issued by public health officials. There has been plenty of guidance urging people to get vaccinated but no governmental orders requiring them to do so. For boards to adopt such an order would clearly exceed the explicit powers granted in their governing documents and arguably also exceed their inherent authority to protect their communities.
- Requiring residents to don masks in common areas is far less invasive than requiring them to be vaccinated. Equally important, requiring owners to provide proof of vaccination – a medical record of some sort – would arguably violate their privacy rights. Residents don’t have to submit proof of vaccination to enter a grocery store or a bookstore; why should they have to submit that proof to a condominium board? That’s a question many owners are going to ask.
- Large public venues might at some point require vaccination proof for anyone who wants to attend concerts or sporting events. But consumers don’t have a right to attend a concert – as long as the reasons for denying them access are non-discriminatory. Condominium owners, on the other hand, do have a right to enter their units and condo boards can’t reasonably or legally bar them from the common areas they must access in order to do so. You can’t tell un-vaccinated residents of a high rise that they can’t use the elevator or the stairs.
What about requiring proof of vaccination not as a condition for entering all common areas but as a requirement for using association amenities? Boards can adopt reasonable rules governing the use of amenities, and requiring vaccinations in order to protect everyone using them would seem on its face to be a reasonable policy. But scratch the surface and you’ll find an array of potential problems.
Illegal discrimination is one. Public health agencies are distributing vaccines based on a priority list that puts the elderly and people with underlying medical conditions near the top and children closer to the bottom. Allowing older residents who have been vaccinated to use the swimming pool but barring access to children, who have not, might violate fair housing laws prohibiting discrimination based on age. You might argue that the vaccine requirement itself is not age-based, but the discriminatory impact is. A court might ultimately agree with you (although that is by no means assured), but win or lose, the association’s litigation costs will be high. Is this an expense you want to incur and a battle you want to fight?
That’s not the only concern. Imposing a vaccine requirement implies that you are going to enforce it (precisely how will you do that?) and creates potential liability if you don’t. If you require vaccinations, how often will you require owners to update them and how will you verify that they are up-to-date? Public health experts at this point don’t know how long the immunity created by vaccines will last; condo associations are hardly in a position to answer that question.
One argument in favor of a vaccination requirement is that it would enable boards to reopen closed amenities safely, reducing litigation and liability risks from owners who contend that they shouldn’t be denied access to facilities for which they are paying. Those risks are real, though probably not as great as many boards fear. But we think keeping the amenities closed would be the more sensible policy, avoiding administrative challenges for which most associations are ill-equipped, and ultimately creating fewer liability risks than associations will incur by imposing a vaccination requirement on owners.
What Can Associations Do?
While there is no question that it is in everyone’s interests for owners to be vaccinated, we don’t think boards can or should impose that requirement. There are other steps they can take to help protect their communities, however.
- Provide information about the need for and benefits of vaccination. Boards shouldn’t provide direct advice, but they can disseminate information from public health agencies and publish links to that information on their Web sites, in e-mail messages and in newsletters.
- Facilitate the vaccination process. Some associations for years have arranged for local pharmacies or other health providers to offer flu vaccines in their communities as a convenience for residents – a convenience older residents, in particular, have welcomed. Your board might want to consider offering the COVID vaccine on a similar basis when it becomes widely available, but with some important caveats. Experience with the vaccine is still limited and we don’t know much about its long-term effects. So if vaccines are going to be administered in the community, you want to limit the association’s liability risks.
- Check with the association’s insurer first to discuss the plan, to verify coverage and to identify any potential insurance requirements or concerns.
- Work with a third party health provider willing to indemnify the association.
- Require owners to sign liability waivers agreeing not to hold the association responsible if they suffer adverse reactions to the vaccine.
- Offer vaccines to residents only. Even a tiny bending of a “residents only” restriction risks classifying the community as a public facility, subject to broad accessibility requirements mandated by state and federal laws.
- Be proactive. Start thinking about vaccine-related policies and procedures (if any) that you may want to consider in the future, but don’t make any policy decisions now. The current advice about vaccination requirements (best not to adopt them) may change; liability risks and other concerns may ease or become magnified. Our advice to association clients: Gather information, monitor advisories and directives from local, state and federal health authorities, pay close attention to the concerns of your residents and the needs of your community, and (you know I’m going to say this), get legal advice before adopting any COVID-related policies.