As COVID-19 vaccines become available to the population at large, a question is already dawning on directors and members alike in condominium associations throughout Florida: Can condominium associations require vaccination as a prerequisite for those entering, working, or living on the premises, or for use of amenities? Should they? This is an early issue at the present moment, given the limitations on who can be vaccinated; however, the implications will change once vaccination is widely available.
Fundamentally, unit owners at condominiums have a right to access their condominium units and to use the common elements. While various decisions support an association’s general power to implement policies and rules for the operation and security of the association and safety of its members, they must be permitted by the association’s authority in the declaration and be reasonable. See e.g., Beachwood Villas Condominium, v. Pool, 448 So.2d 1143, 1145 (Fla. 4th DCA 1984). The business judgment rule provides deference to an association’s authorized operational decisions as long as they are reasonable and within the board’s authority as limited by the declaration and Florida Law. Provisions of declarations could impact this uncertain issue, as well as evolving state and local government mandates.
There is a threshold issue of whether associations will seek to condition access to the condominium or use of amenities on vaccination status—each a highly controversial and aggressive position, and alternatively attempt to adopt a rule or declaration restriction enforceable through other means, such as fines, or injunctive relief. Section 718.1265, Fla. Stat., governs association emergency powers, and includes various subsections that permit the curtailment of the use or occupancy of all or portions of the condominium property “based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board … to protect the health, safety, or welfare of such persons.” Some associations may attempt to rely on this provision (at considerable peril) to justify prohibiting unvaccinated individuals from occupying their units and, still controversial but perhaps more defensible, using common element amenities. For example, condominium associations may impose a vaccine requirement and then try to suspend use rights in common amenities for noncompliance, without preventing ingress and egress to the units. In exploring an emergency powers justification, condominium associations will need to consider, without limitation, whether curtailment of the use of common elements will be justified by professional recommendations and safety concerns (as needed even if the emergency powers apply and can be used as a basis for such actions), and whether the association can even avail itself of the emergency powers statute based upon various technical considerations. If the vaccine requirement is expressly permitted by a declaration provision or amendment, this would give it a stronger presumption of validity (but still subject to constitutional and statutory rights).
Condominium associations should expect legal challenges from residents and the enforceability of vaccination requirements and access or use related remedies for their enforcement is unclear. Once vaccinations are widely available, proponents will argue that a vaccine requirement should be considered reasonable based upon its general acceptance as a public safety measure, growing usage and high rate of effectiveness. On the other hand, opponents of a mandatory vaccination requirements will contend that such a requirement is unenforceable under declaration and statutory access or amenity use rights, and that vaccination should not be required as other less restrictive protocols are adequate in addressing the coronavirus threat without impinging on fundamental property and privacy rights. Moreover, a mandatory vaccination requirement would be problematic if applied in the case of individuals for whom a vaccine would be dangerous and is not recommended by their medical professional, or in circumstances where it would violate fair housing or civil rights laws. Accordingly, any potential vaccination policy would have to be carefully considered with legal counsel and narrowly tailored.
Condominium associations could be more successful in requiring a coronavirus vaccination as a term of employment. Employers, generally, can impose certain conditions on “at will” employment—including mandatory vaccination. Many condominium associations have already published coronavirus protocols such as limiting capacity, requiring those on the premises to wear a mask, and practicing social distancing, sanitizing surfaces frequently, stocking hand sanitizer in various common areas of the building, and requiring employees who traveled recently to quarantine—or at the very least, to provide proof of a negative test result—before returning to the premises.
However, there are potential barriers to a condominium association requiring employees to get a coronavirus vaccination. First, based upon the emergency nature of the vaccine approval, administrators of the vaccination must disclose that the recipient is entitled to refuse the vaccine. Although there is no authority on the impact that this mandatory disclosure has on an employer’s ability to require vaccinations, this could hinder condominium associations from requiring employees to get the vaccination. Second, condominium associations with unionized employees may face an additional hurdle in mandating its employees to get the coronavirus vaccination as it may not have the authority to do so under the collective bargaining agreement. Third, the associations may open themselves to lawsuits by requiring a vaccination. As much of the future of the availability and affordability of widely available vaccinations is still unclear, it is difficult to predict the socio-economic barriers that can prevent prospective and current employees from receiving a vaccine. Additionally, as with any vaccine, certain underlying medical conditions can also prevent employees from getting vaccinated. As such, condominium associations may face a multitude of employment law claims by requiring a coronavirus vaccination as a term of employment.
Condominium associations also contract with third-party vendors to provide management and other services. In such cases of existing vendors, the vendor’s own policies and agreements with its owners will dictate the applicability of vaccination policies unless the association has contracted for additional rights or restrictions in its agreement with such vendor. In hiring new vendors, condominium associations can attempt to impose the condition of vaccination as a condition for procurement of services from such vendor. Should a condominium association implement a policy that excludes unvaccinated vendors, it should be prepared to have a significantly smaller pool of contractors and significant push back from members.
While it may seem prudent to implement more stringent safety protocols, the association must also consider the impact that it will have on the fundamental rights of its residents and employees. Until the legislature or the courts address this issue, condominium associations should continue to approach this issue with caution. At minimum, associations should provide vaccine-related educational forums and updates to encourage vaccination.