BLOG / 05.14.21 /Kenneth R. Jacobs
Covid-19: Can Associations Require COVID Vaccinations?
Everyone finally has access to vaccines! Gyms, playrooms and pools are starting to reopen! Previously Associations worried about requiring COVID testing. Now they must consider whether to require COVID vaccinations as a condition of employment or renewed use of their facilities.
Employees. Under current OSHA and EEOC guidelines, Associations do have the right to require employees to be vaccinated as a condition of employment. When the issue arose during the influenza and polio epidemics, prior courts held that employers have a responsibility to provide a safe workplace, and therefore have the right to require employees to be vaccinated against communicable diseases. (As yet we know of no comparable decision relating to COVID.) However, since the vaccine has only been approved under “Emergency Use Authorization” rules, the employee must be advised that he or she has the option not to accept the vaccine, and informed of the consequences of refusal. Furthermore, in setting its rules the employer must take into account potential mitigating factors such as medical or religious objections (which need to be treated as “reasonable accommodation” requests). A union might also claim special rights under its Collective Bargaining Agreement.
Generally, the employer should consider whether the failure to be vaccinated poses a “direct threat” to the community. The EEOC states that in evaluating such threat, the employer should consider the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. This may result in potential accommodations such as adjusting the employee’s schedule to minimize contact with the community, or incentivizing employees to get the vaccine (such as paying their wages for the time taken to get a shot) to avoid the issue entirely.
Owners. An Association appears to have the legal right to bar members who cannot show proof of vaccination from utilizing amenities. Like employers, associations have a duty to provide a safe environment for their members. A majority of buildings already have passed reasonable rules that require COVID testing, execution of waivers, wearing of masks and social distancing as a condition of public access. A Board could reasonably decide that an unvaccinated member could pose an unreasonable threat to the community as well. Asking for basic medical information in order to determine whether a member qualifies for an accommodation is permitted under the Fair Housing Act, so a request for vaccine information might be treated similarly under the current circumstances.
Nevertheless, taking such a position raises many countervailing issues. First, many children also have not yet been tested or vaccinated, so exceptions would need to be made for them (especially at pools). It is not even clear whether the vaccine affects transmission or only mitigates the symptoms, so requiring vaccination may not avert any threats. Second, exceptions will need to be made for medical or religious accommodations. Based on disparities between populations currently being vaccinated, someone might even claim that the requirement has a discriminatory impact in violation of Human Rights laws. Third, the rule may need to be limited in duration. Should an Association have the right to obtain vaccine information after the formal state of emergency terminates? (Could a Board demand proof of receiving a flu vaccine?) No one knows how seriously COVID will be treated by authorities in the future. Finally, enforcement could be difficult, especially at unattended facilities. It is not reasonable to throw that burden onto volunteers.
In sum, any Board seeking to draw a reasonable line between protecting the rights of the community and its individual members during the COVID emergency must continually reexamine the criteria on which its decision is based. We expect that administrative and judicial rules will shift repeatedly as facilities reopen and employees go back to work.