Vaccine mandates: What Could Requirements Mean for Your CommunityOct 18, 2021
This article first appeared on Community Associations Institute (CAI) Ungated.
The continued presence of the COVID-19 pandemic in the U.S. has been forcing hospitals, schools, other workplaces, and even one Florida apartment community to consider implementing vaccine mandates.
President Joe Biden mandated that all federal employees, federal contractors, and health care workers at Medicaid- and Medicare-funded facilities be vaccinated. In addition, the Biden administration in September directed the Occupational Safety and Health Administration to impose strict COVID-19 vaccine mandates and testing protocols on large businesses.
Details of the OSHA rule are still being determined, but it will apply to businesses with 100 or more employees. In general, private sector employers have every right to require employees to get vaccinated provided exceptions are made for those with medical issues and sincerely held religious beliefs. Meanwhile, apartment owners also have control over their rental properties as long as they don’t violate fair housing laws.
“As of this time, being vaccinated is not a constitutionally protected class. Therefore, it is not unlawful discrimination to require such proof before signing a lease,” says Ellen Hirsch de Haan, an attorney with Wetherington Hamilton in Tampa and a fellow in CAI’s College of Community Association Lawyers (CCAL).
It’s a different story for homeowners associations and condominiums. “There are no circumstances in which any board or condominium manager has the ability or the authority to mandate or ask for proof of vaccination or ask about vaccination status for any owner or resident, family member, guest, or contractor,” says de Haan, a CAI past president. “Basically, the board has limited authority, and there is no authority that includes jurisdiction over a person’s health or medical choices.”
Kelly G. Richardson, a co-founder and partner with Richardson|Ober|DeNichilo in Calif., and a CCAL fellow, says that community association boards could implement vaccine mandates and require masks in the pool area or clubhouse, but he debates whether such requirements are practically enforceable.
“Community association boards normally can pass regulations regarding the use of common areas,” says Richardson, also a CAI past president. “However, how will the association police these issues? Will staff be placed in the clubhouse controlling all entry points?”
Execution of vaccine mandates likely would add additional stress and headaches on association staff and volunteers.
“I still believe the best approach is to take reasonable precautions while reminding all members that the association cannot guarantee the health status of others, and residents should make their own decisions regarding their personal risk,” he says. “Association boards are in uncharted waters, with one group of homeowners demanding access to amenities, while another group of owners demands shutdowns or strict controls for health safety reasons. As with most community governance questions, the answer is probably somewhere in the middle.”
Instead of a vaccine mandate, de Haan says associations might be better served by encouraging a safe environment: adopting a mask policy for common areas, putting out hand sanitizer, cleaning frequently, and encouraging physical distancing.
Laura Otto is the senior editor of CAI’s award-winning Community Manager. A seasoned journalist, Laura previously worked for a creative, advocacy agency in Washington, D.C., where she wrote and edited content for a variety of public health clients. Prior to that Laura served as a senior writer and editor for the George Washington University School of Medicine and Health Sciences. Laura is a graduate of Temple University in Philadelphia. She currently resides in Alexandria, Va., with her husband and two small children.