“You Can’t Make Me!” Vaccination Considerations for HOA Boards and Common Interest Communities

COVID-19 vaccines are now readily available to any Minnesotan who wishes to be inoculated. In fact, Minnesota is one of the most highly-vaccinated states, with approximately 45% of the state population fully vaccinated at the beginning of May 2021. With the widespread availability of the vaccine, it is important for common interest communities and homeowners’ associations (“HOAs”) in Minnesota to understand their rights and obligations as it relates to this issue.

Most HOAs in Minnesota, including all condominium associations and most townhome associations, are bound by and subject to the Minnesota Common Interest Ownership Act, Minn. Stat. § 515B et seq. (“MCIOA”). For more information about the benefits of opting in to MCIOA, click here.

Under MCIOA, associations have the power to regulate the use of the association property, including units and common areas, as well as the conduct of unit occupants, that may affect the health, safety, or welfare of other owners and occupants. All owners and occupants within a common interest community are required to follow Minnesota law, the governing documents, and the rules of the association, even if they do not agree with them or did not fully understand that they would be bound by them when they bought their unit.

Associations have the power to regulate activities that relate to the health, safety, and welfare of the owners and occupants, but those regulations must be “reasonable” in order to be enforceable. Requiring a property owner, who is obliged to be a member of the association by virtue of owning their unit, to be vaccinated may violate state and federal law relating to medical privacy rights.bueno

At the federal level, the Health Insurance Portability and Accountability Act (“HIPAA”) gives individuals the right to keep their medical information, including medical records and proof of vaccination, private. While the law may permit employers to require their employees to provide proof of vaccination, HOAs are not employers and likely do not have the same legal authority. Additionally, so far, governmental bodies, schools, and airlines are not requiring proof of COVID-19 vaccination, making it that much more difficult for a common interest community to establish such a requirement.

Thus, HOAs should not demand proof of vaccination from its owners or occupants, nor should it make vaccination or disclosure of personal health information a requirement for serving on the Board of Directors. Similarly, the Board should not pass rules that require vaccination in order to enjoy amenities in the community, such as pools or work out rooms, nor should a member’s voting rights be affected by their vaccination status.

Nevertheless, the association may still pass policies and regulations related to COVID-19 and keeping the community safe. For example, social distancing and mask requirements, even rules stricter than the Governor sets, can be implemented for common areas and amenities. The association may also require vendors, service providers, and other invited personnel to provide proof of vaccination prior to working within a unit or the common areas.

Additionally, although HOAs probably cannot require vaccination, they could choose to work with the State of Minnesota and other health care agencies to hold a vaccine event for members. While the HOA could not require that owners and occupants be vaccinated at such an event, it could help reach individuals who may not choose to go out of their way to be vaccinated, benefitting the overall health and wellbeing of the association community.

Of course, prior to holding such an event, the association should take steps to ensure the safety of the community. This includes, but is not limited to, adopting a written resolution authorizing the use of the common area for the vaccine event, ensuring that there are adequate rules and regulations regarding masks and social distancing in place, making sure that such rules are fully enforced, and coordinating with the appropriate agencies to assist in the administration of the event. The association will also likely want to reach out to insurance carrier to notify it of the event and take any steps it requires to maintain coverage.

The attorneys at Smith Jadin Johnson have worked extensively with associations and communities in order to ensure that they fully understand and comply with the safety measures and legal requirements during this unprecedented time. If you or your association have any questions about the current COVID-19 requirements, or any other HOA issues, please contact our office today.