Employment

Over the next year, Covid-19 vaccines will hopefully become readily available to the general public. Boards of community associations will undoubtedly have to decide on vaccines. Can they mandate them of employees? Can they mandate that resident owners be vaccinated? How about tenants? How about property managers and other independent contractors? Will vaccines become a competitive advantage for contractors selling their wares or services because they are 100% vaccinated? Boards will have a lot to consider and ought to get current legal advice before making any business decisions on vaccines. This is a new world that we are experiencing, but there are all sorts of laws that have to be considered and new ones are sure to be enacted as we muddle through.

With respect to employees, the landscape is getting clearer but the answers are still a little cloudy. Soon enough someone will be fired or not hired because they are not vaccinated and we’ll have some case law to guide us. Here’s were we are on employees.

Mandatory vaccinations are not new but have been historically limited to health care and education market segments. While there is no clear legal prohibition on mandatory vaccines in the employment context, these requirements are subject to several legal exceptions, most notably accommodation for disability, religion and pregnancy.

On December 16, 2020, the Equal Employment Opportunity Commission updated its COVID-19 guidance to express the agency’s views on the legal implications of COVID-19 vaccine under the Americans with Disabilities Act (ADA), Title VII and other EEO laws. The EEOC’s guidance is not binding on courts, but it is expected to be highly influential. Key takeaways from the guidance are as follows:

• A vaccine is not a medical examination under the ADA, but pre-vaccination questions answered by an employee as a part of an employer’s vaccination program may be ‘disability-related inquiries’ under the ADA that should be avoided absent business necessity.
•  Employers may need to accommodate an employee with a disability who cannot take the vaccine because of that disability.
• Employers may need to accommodate an employee’s sincerely held religious beliefs or pregnancy, if either prevents an employee from taking the vaccine.

To date, the Occupational Safety and Health Administration has not taken a position on whether an employer can require the COVID-19 vaccine or must at least offer it to meet statutory safe workplace obligations.

Then there is the question of unionized employees. What does the Collective Bargaining Agreement in place say. There is no real question that the adoption of mandatory and non-mandatory vaccination programs by unionized employers are a mandatory subject of bargaining. But that does not mean that employers cannot start a vaccination program or require vaccination.

Employers with current union contracts should start by examining the management rights and other provisions of their contract to determine if they are broad enough to waive a union’s right to bargain. Even in the absence of a management right to proceed, most employers can still bargain over vaccine program issues with their unions. Most employers will also benefit from keeping their unions involved even if there is a management right to proceed with a vaccination program, as doing so can assist with employee buy in and avoid grievances (and adverse arbitration results).

Aside from the above, board employers need to consider the fact that while many employees may embrace vaccination without hesitation, a large percentage of people are reportedly skeptical or concerned about side effects or other unknown health implications. As time goes by and we learn from experience in vaccinations and their hopeful positive effect, people will likely be less concerned and apprehensive.

In the end, coop, condo, HOA and other community association boards. have to act in the best interest of their association communities. Making decisions on vaccinations are likely going to be on the board meeting agendas soon enough. Navigating these uncertain times is difficult without experienced professional advice.