According to a January 11 legal alert from the New York-based law firm of Tarter Krinsky & Drogin LLP, it may be possible for employers - presumably including cooperative corporations, condo associations, and HOAs - to require their employees to get the COVID-19 vaccine as soon as possible in order to come to work.
The alert stated that “While the U.S. Equal Employment Opportunity Commission (EEOC) has not explicitly stated that mandatory vaccination policies are permissible, on December 16, 2020, it updated its Technical Assistance Publication, ‘What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws.’
“The EEOC’s updated guidance is premised on mandatory vaccination policies being in place, which suggests that requiring employees to receive vaccinations as a condition of returning to the workplace is not prohibited, provided certain conditions are met,” says the alert. “In meeting those conditions, employers will need to consider their requirements concerning medical inquiries and accommodations related to disabilities, pregnancy and religious beliefs under federal laws such as the Americans With Disabilities Act, the Genetic Information Nondiscrimination Act and Title VII of the Civil Rights Act of 1964.”
Awaiting Guidance from the State & City
In terms of how mandatory vaccination requirements for staff members is being addressed at various levels of government, the alert went on to say that “While New York State Governor Andrew Cuomo has indicated that you cannot mandate that an individual take a COVID-19 vaccine, we await formal guidance on vaccination policies from New York State and at the New York City level.
“An active New York State Assembly Bill (the Bill) would mandate vaccinations for individuals who are proven safe to receive it (subject to exemptions). The Bill was referred to the Committee on Health on December 4, 2020. However, we have yet to see whether the Committee on Health will report the Bill to the full Senate for consideration, amend it, or reject it all together.”
The alert concluded by saying that “In sum, it may be premature for employers in New York to implement mandatory vaccination policies until further guidance is released.”
As with nearly every aspect of the fast-changing landscape around the pandemic and policy-based efforts to mitigate it, it’s absolutely vital that boards and managers consult with qualified legal counsel to make sure they’re acting in accordance with both the letter and spirit of the law - not just to do the best they can for their constituents, but also to avoid both negligence and potential liability claims.