The Federal Mandate

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.

Rental Requirements

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).

Limiting Access To Amenities

Kelly G. Richardson, a co-founder and partner with Richardson Ober DeNichilo in Pasadena, 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?”

Attempting to implement 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.”

The Board’s Mandate Authority

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.”

A Duty To Protect

There is also some debate as to if associations “duty to protect” citizens includes things like viruses and other contagions. While it is extremely unlikely that an association could be held liable for someone’s personal health, gross disregard for serious health concerns that violate local health codes could leave associations responsible for the fallout.

Mandatory Mindfulness

Instead of a vaccine mandate, associations might be better served by encouraging and promoting a safe environment. Adopt a cleanliness policy for common areas, and make it accommodating for everyone by putting out hand sanitizer, cleaning frequently, and encouraging physical distancing . By setting the scene and being mindful of others, associations can lead by example and perpetuate a true feeling of community throughout its shared spaces.