As vaccines continue to roll out and cities continue to relax restrictions, many homeowners associations have the same question in mind — can you require residents to get vaccinated? The answer is not that simple, though. Here is what you need to know about your HOA and COVID-19 vaccine as a requirement.
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HOA and COVID-19 Vaccine: Can Associations Require It?
The COVID-19 pandemic forced homeowners associations across the nation to close amenities and halt in-person meetings. As restrictions ease up, many HOAs have reopened their amenities and common areas, though some still have occupancy limits. With vaccines rolling out, HOAs face a new challenge — whether or not to require residents to present proof of vaccination before allowing them to enter common spaces.
The first thing you should consider is your board’s authority. Given this unprecedented circumstance, most governing documents remain mum on the matter. It is likely, though, that boards possess no authority to impose mandatory vaccinations. Enforcing it would be difficult, and association boards are bound to encounter protests along the way.
The Case Against Making Vaccination Mandatory
Because of how contagious and harmful COVID-19 can be, it is easy to understand an HOA board’s desire to have all residents vaccinated. Your board probably just wants to protect everyone in your community, and you feel that requiring the vaccine is the best way to do it. But, there are several pitfalls to making vaccination mandatory for all residents.
First of all, this type of requirement makes your HOA vulnerable to liability. If a resident does not want to get vaccinated due to religious reasons, making vaccination mandatory can open you up to discrimination claims.
There is also an argument to be made for the Health Insurance Portability and Accountability Act of 1996. This Act protects a person’s legal right to maintain the privacy of their medical records. Requiring proof of vaccination might be considered as requiring someone to disclose their medical record to the association, which clearly breaches the Act and exposes you to a lawsuit. Several states also have their own laws concerning this issue.
Secondly, homeowners have equal rights to use the common areas and amenities of the association. When you decide to only allow vaccinated residents to use these spaces, it might be considered a violation of this right. You are also creating a class system within the community, which some states have ruled to be unlawful. Again, this makes you vulnerable to liability and discrimination claims.
Finally, depending on your location, there may already be an executive order prohibiting you from requiring proof of vaccination. In Florida, for instance, Governor DeSantis has banned businesses and agencies from asking for what is called
Requiring Vendors and Other Service Providers
But, while you cannot reasonably require residents to get vaccinated, you may be able to require your service providers, contractors, and vendors to provide proof of vaccination. Consult with an attorney to see if this is an option for your association. If it is not, reconsider your vendor selection process and look for one with fully vaccinated workers.
HOA and COVID-19 Vaccine: What Associations Can Do
At this point, you know that requiring residents to get vaccinated is clearly a bad idea. But, what can you do to make the community a healthier and safer place for everyone?
Since you cannot force anyone to get the vaccine, all you can really do is recommend it to your residents. Write and send a letter to residents explaining the benefits of the vaccine, but make no statement that alludes to the association requiring. You can draft this letter yourself or ask your management company to do it.
It is also a good idea to regularly share CDC advisories with the members of the community. Educating people will help them realize the importance of the COVID-19 vaccine.
Continue Enforcing Health Protocols
Still, it is best to continue upholding current health protocols within the community. That means maintaining handwashing or hand-sanitizing stations, cleaning common areas frequently, and encouraging everyone to wear masks.
Remember that making vaccinations mandatory is not within the scope of your board’s typical authority. Moreover, some residents will fight against such a requirement, making claims on the basis of medical and religious reasons.
Allow the Use of Common Areas as Vaccination Sites
Associations can, if they wish, lend their clubhouses to the government for use as vaccination sites. This might encourage residents to receive the vaccine since it is more accessible. Keep in mind, though, that some residents may push back against the idea. There is also a risk of a lawsuit brought on by a resident claiming they caught the virus in the common area.
Going Through With the Requirement
If your board ultimately decides to require vaccination, though, it is necessary to amend your governing documents to include the provision. Of course, this process will likely need approval from your membership. Again, it is best to seek counsel from an experienced attorney.
The Future of COVID-19 Vaccination
Many cities and counties did urge associations to enforce mask-wearing regulations in private communities, with some even threatening a monetary penalty for noncompliance.
Similarly, some associations may be waiting for the government to require vaccinations. But, while possible, this is unlikely to happen since it will face a lot of pushback. As such, if the government imposes no such requirement, it is unreasonable to think that associations can do otherwise.
As the months go by and more people receive the vaccine, the future is optimistic. Though perhaps not completely, the world will eventually return to normalcy and associations will once again be more concerned about budgets, fees, and maintenance than the vaccine.
HOA and COVID-19 Vaccine: Settling the Debate
Although your effort to require vaccines may be rooted in a noble desire to keep everyone healthy, it is not the best route. When you weigh out the pros and cons, there are clearly more downsides to the decision. Therefore, the safest course of action is to simply recommend the vaccine to your residents. Forcing people is not the way to do it as it sows discord within the community and may even open you to liability claims.
If your board needs help managing community operations, Clark Simson Miller is your best option. Give us a call today at 865.315.7505 or contact us online for a free proposal.
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