The unprecedented challenges of this year have been difficult for us all. These challenges are magnified for volunteer board members having to make hard decisions which impact not only themselves, but their family, friends, and neighbors. As we turn to a new year, exciting news of advancements and wider distribution of COVID-19 vaccines appear on the horizon. While this is, of course, a welcomed development, the vaccines in and of themselves will bring new decision points for boards and their management professionals with respect to whether their associations are going to modify COVID-19 protocols which have been in place for much of 2020. From an executive level perspective, these protocols break down into two broad categories: (1) restrictions related to facilities; and (2) restrictions related to people.
Many of our clients made tough choices to close down common facilities completely when COVID-19 infections accelerated. Other clients took a more incremental approach with limited use of such facilities, monitoring the use of those facilities and enhanced disinfecting procedures. The bottom line is that no one approach was prescribed for all types of communities. In formulating the COVID-19 procedures, boards were encouraged by us to thoroughly evaluate:
- what types of facilities their community contained,
- the risk factors potentially associated with the use of those facilities,
- the community’s budgetary and staffing constraints, and
- how guidance (and legal mandates) from local, state, and federal governments applied to their community.
The same will now be true with respect to evaluating the impact of widespread vaccine availability.
Thankfully board members are not expected to have all of the answers immediately, however, now is the time for you to start preparing for the questions that will inevitably arise from residents. You may find that residents start advising that they have been vaccinated and thus are entitled to ignore your safety protocols such as masks, social distancing and use of amenities immediately upon arrival from elsewhere. Boards should follow developments in recommendations from applicable authorities and work closely with legal counsel to help formulate appropriate restrictions as developments in the vaccine distribution process occur.
In addition to restrictions on facility usage, the COVID-19 crisis resulted in difficult decisions to restrict guest access. Those decisions often impacted not only the number and type of guests that the residents could invite into the community, but also limited the ability of new tenants and owners to move in, as well as limiting which vendors could continue serving the association and individual owners.
With the release of the COVID-19 vaccine, many of our boards are inquiring if their current guest restrictions should be loosened or eliminated for those guests willing to provide proof of vaccination. Similarly, associations with direct employees are asking if they should require those employees to provide proof of vaccination and others who have leased employees are wondering if their contracts with those companies should be revised to require proof of employee vaccination. While we do have some precedent with the flu vaccine and requirements for certain types of employers like hospitals and nursing homes, we have no such guidance when it comes to the new COVID-19 vaccine.
There will likely be employees who refuse to be vaccinated on religious grounds or who will claim a physical disability under the ADA. It is important that your board take no steps regarding this issue without obtaining a legal opinion first. Incentives related to covering any out-of-pocket costs and time off needed to be vaccinated may be better methods to ensure a vaccinated workforce as opposed to a mandate.
As for outside vendors who may be hired by the association and/or by your residents, there also needs to be a thoughtful deliberation as to what other protections along with proof of licensure and adequate insurance coverage may be appropriate.
We understand that the COVID-19 pandemic continues to be a fluid and difficult situation. However, with the welcomed news of vaccine distribution, boards need to initiate discussions and potential adjustments to their association’s COVID-19 protocols as you will likely receive questions or demands from your residents related to the vaccine. Naturally, any changes to your community’s COVID-19 protocols will need to be properly adopted at a duly noticed board meeting and those changes properly communicated to your residents. If you are interested in discussing this topic in greater detail, please contact your Becker attorney.