By Michael L. Hyman / Published February 2021
With COVID-19 vaccinations rolling out across the country, many community associations and their boards of directors are now weighing how and when to take vaccines into account in their measures to mitigate the potential spread of the virus in their communities. Some have even wondered about whether it would be possible to mandate vaccinations or open some amenities exclusively to those who have received the shots.
While communities do not have the authority to mandate vaccinations for their residents, there may be some more modest and reasonable measures that they could take which could encourage their use and acknowledge the added level of disease prevention that the inoculated may enjoy.
The starting point for all such discussions should begin by recognizing that there are many questions that remain unanswered. For example, it remains unclear whether those who have received their shots can still contract and spread the virus, so masking, social distancing, and hand washing/sanitizing continue to be recommended for all.
However, with efficacy rates reported to be approximately 95 percent, the chances of contracting the virus and developing severe symptoms should be greatly diminished for those who have been vaccinated. After receiving both doses, the newly inoculated could be able to enjoy larger gatherings and activities together with other vaccine recipients that would be too risky for those who have not received the vaccine.
So, the best approach for association boards of directors is to keep an open mind about their coronavirus precautions and listen to the concerns and requests of their community’s owners and residents about their preventive measures, which should continue to evolve as the vaccines take hold and questions are answered. They should consult with highly qualified and experienced association legal counsel about any changes to their precautions.
For example, some associations may wish to consider the possibility of creating small blocks of time for the use of amenities by all those who voluntarily submit proof of vaccination to association staff. Such measures would require added staffing/enforcement and could raise questions about potential legal liabilities involving the Fair Housing Act and alienation of use claims, so they should only be considered under the careful guidance of association attorneys. However, some minor concessions could help to demonstrate to the inoculated that their status is being recognized as part of the community’s continued protocols to prevent contagion and follow the guidelines of state and local health authorities.
For 55-and-over communities, vaccinations could quickly reach high levels, so those properties may be the first to consider such incremental changes acknowledging the diminished exposure of their residents and staff.
But for most community associations, there probably will not be any major changes in the early stages of the vaccine roll out, and perhaps well into 2021. They will need to continue monitoring the penetration of the virus and the positivity rate from local testing results to gauge the adequacy of their preventive measures and whether they need to be adjusted to be less or more stringent. They should also monitor and make use of all the continued guidelines and recommendations from the Centers for Disease Control and Prevention.
With so much hope across the country and the entire world resting on the COVID-19 vaccines and their marking the beginning of the end of the pandemic, community associations and their boards of directors should continue to keep an open mind about their preventive efforts and how the growing use of the vaccines should become part of the equation. By listening to all the thoughts and concerns of their residents and staff and continuing to closely monitor the penetration of the virus in their areas and the guidance of health authorities, boards of directors can demonstrate that they are taking a proactive and progressive approach to keeping all those in their community as safe as possible.
Michael L. Hyman
Shareholder, Siegfried Rivera
Michael L. Hyman is a shareholder with the law firm of Siegfried Rivera who is based at the firm’s Coral Gables office and has focused on community association law since 1970. He is a board certified specialist in condominium and development law by The Florida Bar and is a regular contributor to the firm’s association law blog, www.FloridaHOALawyerBlog.com. The firm also maintain offices in Broward and Palm Beach counties, and its attorneys focus on community association, construction, real estate, and insurance law. For more information, visit www.SiegfriedRivera.com or call (305) 442-3334.