Vaccinations for COVID-19 are underway, but homeowners associations all have the same concern. Can an HOA require the COVID-19 vaccine for residents? Find out below.
The coronavirus outbreak affected homeowners associations nationwide, making them temporarily shut down common areas and move meetings to digital mediums. As government-imposed restrictions continue to relax, so have homeowners associations. But, the glaring question on most board members’ minds remains largely unanswered — can your HOA require COVID-19 vaccine?
Homeowners associations may want to require residents to show proof of vaccination before allowing them to use or even enter common facilities. This, though, is not exactly within the scope of every board’s authority. Most governing documents lack the provisions for it, so it is presumably outside of the board’s powers to enact such a requirement. Additionally, enforcing the rule comes with its fair share of challenges, as some residents are likely to have objections.
Having the authority to require COVID-19 vaccination is one thing, but you must also consider whether or not you should proceed with such a requirement. While ensuring the health of residents is the obvious upside, you must not let it blind your decision-making. There are downsides to requiring the vaccine as well.
When someone becomes a homeowner in an HOA, they immediately receive an easement and a right to use the community’s common areas and amenities. Preventing unvaccinated residents from accessing these spaces is a breach of that right. Worse yet, residents are not afraid of involving the law when their rights are violated. Therefore, imposing a vaccination requirement can lead to lawsuits for your association.
According to the federal Health Insurance Portability and Accountability Act, people have a legal right to keep their medical records private. Under the eyes of the law, asking residents for proof of vaccination may be deemed an infringement of this Act. Again, this can result in a possible lawsuit for your homeowners association.
Moreover, the privacy of medical records is not only protected by federal law. Many states have their own legislation that offers similar protection.
Apart from medical issues, there are also religious exemptions to consider. Some residents might claim that it goes against their religious beliefs to get vaccinated. Thus, forcing them to receive the vaccine could make your association vulnerable to claims of religious discrimination.
Beyond that, granting vaccinated and unvaccinated residents different rights is also discrimination. And some states have outright declared it illegal to create classes within a community.
In some states, it is prohibited for businesses to discriminate against unvaccinated persons. For instance, Florida governor DeSantis has issued an order banning agencies and businesses from requiring proof of vaccination. Because HOAs are organized as non-profit corporations in many states, they must comply with restrictions and orders that apply to businesses as well.
If the federal, state, or local government does not require vaccination, it would not make sense for HOAs to make it mandatory. Then again, some counties and cities have previously asked HOAs to enforce public health regulations such as wearing masks or risk a fine. There is no guarantee, though, that local governments will do the same for vaccinations.
As you can see, there are several reasons why it is ill-advised to require COVID-19 vaccination. But, that does not mean homeowners associations are left with no options to help ensure the health of their residents.
The first thing you can do is recommend that community members get the vaccine. Send out a letter with helpful vaccine information and the advantages of getting the vaccine. This will educate residents and perhaps even convince those who are still on the fence. To prevent issues with liability, you can ask an attorney or your management company to help you with the wording.
You can also make it easier for residents to receive the vaccine by allowing your local public health department to use your clubhouse as a vaccination site. This comes with some risks, though. If a resident contracts COVID-19 after visiting the clubhouse, they might blame the association and pursue legal action.
To further protect your residents, it is also advisable not to halt health protocols. Continue to urge residents to wear masks, practice social distancing, and wash their hands frequently. You should also clean and disinfect common areas often.
While requiring residents to get the vaccine may be out of reach, it might be possible to require vendors and contractors to show proof of vaccination. If your current vendors refuse to get the vaccine, you can always choose a new (and vaccinated) vendor upon the expiry of your contract.
Most experts agree that homeowners associations have no authority to make vaccinations a requirement. But, if your HOA still pursues this route, you must then, at a minimum, amend your governing documents to coincide with the decision.
In most states and associations, though, amending your governing documents will require membership approval.
Additionally, you should prepare to address complaints and protests from some of your residents. It is also a good idea to talk to a lawyer about the potential risks involved and how you can shield the association from them.
As a member of your HOA board, it only makes sense for you to worry about the general health and well-being of your residents. Making vaccination a requirement, though, is not necessarily the best solution. When it comes down to it, the pitfalls of requiring residents to receive the vaccine outweigh the benefits. All you can do at this point is to recommend that residents get the vaccine and continue practicing health protocols within your community.
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