As COVID vaccines become available, HOA board members need to understand issues related to requiring vaccinations for board members and residents. Are such policies legal? Are they enforceable? Are they advisable? Are they timely?
Here are factors to consider when developing your HOA plan for COVID vaccines:
What authority has the HOA granted to the board?
Start with a review of the governing documents for your association. Determine whether the document gives the board broad rulemaking authority or whether the board has jurisdiction over only certain factors like use of common areas. If governing documents grant limited authority, the board will have no basis for requiring COVID vaccinations.
What COVID policies are currently in place?
Clearly, HOA boards have been struggling with and addressing COVID protocol for the past several months. If the board has been asking board members and residents to self-report positive COVID tests or close contacts, the board has a precedent for setting COVID related requirements.
The National Apartment Association advises property owners to notify residents of health and safety concerns by sending emails or posting notes on doors or messages on community message boards when a resident self-reports a coronavirus diagnosis.
Boards may have also established masking, social distancing, and visitor policies. If such policies are in place, accepted, and adhered to, the next step to requiring vaccines has a foundation and a precedent. If policies related to COVID safety procedures have been resisted or ignored, the board has little foundation to create policies dealing with vaccines.
What are the state and local mandates related to COVID?
If the state or municipality where the HOA resides has passed ordinances related to COVID safety procedures, the HOA board will have an easier time asking residents to abide by masking, self-reporting and quarantine guidelines within the facility. As vaccines become available, mirroring state and local decisions provide a rationale for HOA board decisions.
In addition to HOAs voluntarily following local mandates, at least one community is seeking to enforce public mandates on privately-owned property. David Firmin, a Colorado attorney, explains in a recent HOAleader article that the city and county of Denver recently threatened to fine an association for failing to enforce public health orders on mask wearing. Other locales could potentially see similar issues related to vaccinations.
With answers to those background questions, the board is ready to address the issues related to vaccines.
Are they legal?
According to the HOAleader.com article, requiring board members and residents to be vaccinated may not be legal. In the article, Alessandra Stivelman, a board-certified condo and planned development lawyer from Hollywood, Florida, offers her opinion that requiring anybody to get vaccinated may be beyond the scope of standard board authority.
Employers can require their employees to provide proof of vaccination unless federal, state or local privacy laws prohibit it. But HOAs are not employers and may not have that same legal authority.
Best advice: consult a private attorney for legal advice related to applicable statutes.
Are they enforceable?
An article in The Dallas Morning News explored the question of HOAs asking residents to provide health information. In the article Jackson Walker who specializes in HIPAA and medical record privacy said that residents don't have to tell their HOA or property manager if they've been exposed to or even contracted COVID-19. In addressing the issue, Walker cited HIPAA (the Health Insurance Portability and Accountability Act), which protects individual's health record privacy rights.
Some occupants have self-reported their positive COVID tests or close contacts, allowing facilities to inform other residents without revealing any private information. Residents could, theoretically, also choose to share the fact that they have been vaccinated. This would allow boards to share neutral statistics and comments such as "Sixty percent of our residents report that they have chosen to receive the COVID vaccine."
Enforcing a vaccine requirement would be completely different, however. Boards would have to request vaccine records which would raise privacy concerns and likely violate HIPAA. Enforcement would be further complicated by the fact that the vaccine will not be universally available immediately and will be offered to specific groups according to priority.
In addition, boards could possible face liability issues if someone had a negative or allergic reaction to the vaccine. Fair housing claims could be pursued by residents who don't do vaccines due to religious reasons.
Are they advisable?
While many issues remain unresolved, keeping residents of shared living facilities free from the virus is certainly advisable. Current recommendations by the CDC advise people to be vaccinated. HOA boards would be within their authority to share current information and medical recommendations regarding vaccines.
Because masks have become political issues vaccines will also, undoubtedly, be controversial. The board will want to weigh the facility's ability to handle such controversies while remaining a pleasant place to live. Certainly a board should not issue a vaccine mandate until they are fully prepared to deal with the legal questions and the repercussions.
One option might be for the board to schedule a voluntary vaccination clinic in a common area of the facility. Federal health officials have said the vaccine will be free to everyone who wants one in 2020 and 2021. The board would need to work with a local health care provider to arrange the time, place, and requirements.
Are they timely?
According to HOAleader.com, the issue is just beginning to bubble up. Decisions made by HOA boards at this point could be premature.
Rather than make hard and fast decisions at this time, HOA boards should continue to gather input and information, monitor reliable health information resources, seek legal advice, and keep having open discussions.
Camille Moore
Jennifer Harvey
