Can HOAs Require Residents to be COVID-19 Vaccinated?

Homeowners’ association boards of directors are responsible for maintaining common areas and keeping them safe. As COVID-19 restrictions are lifted and homeowners’ associations begin to reopen their common area facilities, associations will be evaluating various options relative to the safest way to reopen. A likely topic of debate among association boards and homeowners will be whether the association can place restrictions on the use of common area facilities based on whether, or not, the users have been vaccinated.

Authority

For HOA boards to impose requirements such as vaccinations, they must possess the requisite authority. Given the unexpected nature of the pandemic, it is highly unlikely that an association’s governing documents contain provisions that would clearly authorize its board of directors to impose a mandatory requirement for COVID-19 vaccinations. While it is well established that association boards have the authority to regulate activities that relate to resident safety and wellbeing, it is not clear as to whether that authority extends to the overall health of the homeowners. Further, although it is commonplace for an association’s governing documents to empower a board of directors to adopt “reasonable” rules, it is unlikely that a rule about COVID-19 vaccinations would fall within the category of the contemplated rules. Thus, a decision by an association’s board of directors to require vaccinations would necessitate an amendment of the association’s governing documents to include such a provision. This process will most likely necessitate approval of a requisite percentage of the association members.

Compliance with Government Imposed Requirements

Depending on the state in which a homeowners’ association is domiciled, there may be governmentally imposed orders, such as in Florida, that prohibit businesses and agencies from requesting proof of vaccination. Because homeowners’ associations are typically organized as non-profit corporations, they must comply with state and federally imposed restrictions that apply to businesses.

Practical Problems

Limiting masking requirements to unvaccinated persons forces associations to implement procedures to determine whether a person has been vaccinated. Since individuals are not legally required to disclose what they consider to be their private health information, there will always be a certain number of people who refuse to answer the question. Additionally, an unvaccinated person could: