Colorado is currently in Phase IB.2 of its vaccine distribution plan, which covers residents age 65 and older, first responders, teachers and educational staff, licensed childcare providers and governmental officials. It is by Phase 3 that the vaccine is expected to available to the general public and anticipated to happen by summer of 2021. Just in time for pool season!
As we edge closer to the reality of the vaccine becoming available to all, the big question is can Associations mandate vaccines in exchange for allowing owners/residents to use their facilities?
There is no question that there are arguments in favor or making the vaccine mandatory:
- Most governing documents allow boards the right to adopt reasonable rules concerning the use of common elements. A rule requiring proof of vaccination in order to use a facility would be within the compass of a reasonable rule.
- Opening facilities to only those who are vaccinated reduces the Association’s uninsured risk. There is a reasonable basis to believe that if only vaccinated persons utilize the facility, the risk of infection is reduced.
- Indicating that one has received a vaccine to COVID-19 is not the same as sharing personal medical data. It’s argued to be equivalent to checking that people are dressed appropriately for the location (cannot be barefoot on treadmill, no entry to pool if you have an open wound), checking for identification before allowing people to enter a private gym/pool, checking age, or checking to see if their assessments are paid, etc.
- Even if sharing vaccine information is considered to be equivalent to sharing medical information, requiring minimal level of medical information in order to participate in something has been found to be acceptable. Under the Fair Housing Act, associations are allowed to ask for medical information to determine whether one qualifies for a reasonable modification/accommodation.
However, despite the above, vaccines must be determined to be effective and available to everyone before associations can even think of mandating them. The following issues concerning effectiveness and availability of the vaccine must be resolved before associations move forward with making them contingent upon use of the Association’s facilities:
- Currently, the vaccine distribution has racial and socioeconomic disparities. When the vaccine does become available to all who want it, the issue of whether everyone has equal access would need to be evaluated.
- There are new strains of COVID. It remains unclear/unknown whether the current vaccine is fully effective against the new strain.
- Studies do not yet support that the vaccine prevents the spread of transmission, only that it helps against prevent serious symptoms of the virus. Therefore, it is unclear whether the vaccine actually prevents the spread of the virus.
And even when the effectiveness and availability issues do get resolved, we have to contend with the arguments against mandating vaccines:
- An association cannot require residents to provide medical information. An association cannot compel a resident to show proof of the vaccine any more than it can require proof of an annual flu vaccine.
- Once associations start conditioning the use of facilities, the issue of enforcement comes into play. While some associations already manage access through key cards/fobs or monitoring by having an employee present, those that do not, will have to iron out how to manage access.
- At this time, the vaccine has not been tested on children and children are not expected to receive it. We do not know if that will remain the case moving forward. This is likely to become a major issue with pools. Can children not access the pool unless the supervising adult is vaccinated? Can the supervising adult remain out of the water but remain in the vicinity to supervise the kid? Is this better in outdoor pools as opposed to indoor pools? The argument for an adult wearing a mask to an outdoor pool area only for the purpose of supervising their children is a valid one, however that exemption means there will be 50 adults at the pool, not getting in the water, but nonetheless adding to the spread.
- Being forced to share information about whether an individual has received the vaccine is akin to being forced to share their medical information. Especially when it comes to those who are unable to receive the vaccine for one reason or another. They are forced to disclose why they cannot receive the vaccine. Such disclosure can be argued to violate an individual’s medical privacy rights.
- Associations would have to create exceptions for individuals who are prevented from getting the vaccine due to medical reasons.
- Associations will also have to provide an exemption for those requesting it for religious reasons. Requests for exemptions based on “a sincerely held religious belief” is difficult to evaluate and would blur the differentiation between valid exemptions versus those who simply don’t want to get the vaccine. It is possible that many could use this exemption to simply side-step the vaccination requirement rendering the entire rule null and void.
- If governmental entities, schools, or airlines do not mandate vaccines, Associations will be able hard-pressed to make the argument that their requirements are reasonable.
At this time, we have more questions than answers, however what is clear is that Colorado is nowhere near the vaccination levels required for associations to make vaccines contingent upon use of the facilities. This may change as we head into the summer. But until then, associations should not be asking for proof of vaccine in any context.
Associations should continue to follow the CDPHE guidelines as well as local ordinances regarding the use of facilities and limit capacity according to their county’s dial level. If your association is thinking about re-opening the pool for the summer, please make sure owners/residents are signing a waiver prior to entry.
If you have any questions, please contact an Altitude attorney at 303.432.9999 or [email protected].