A Manhattan co-op's gym, like so many across the city, has been closed since last March. The board recently decided to reopen the gym – but only for those shareholders who are fully vaccinated against COVID-19. All others are still prohibited from using the gym. Is this legal?
This board’s new rule doesn't make much sense, and it may be discriminatory, replies the Ask Real Estate column in The New York Times. The vaccine isn’t universally available yet — as of March 26, only 15% of adult New Yorkers were fully vaccinated. So the rule most likely excludes a majority of the building’s residents, many of whom are awaiting access. Even when the shot becomes readily available, there will still be people who don’t want to take it for health or religious reasons. Does the board really want to be in the position of policing the private medical and religious decisions of its residents?
“While I’m all in favor of getting people back to the gym, there could be some issues with this rule,” says Steven Sladkus, a partner at the law firm Schwartz Sladkus Reich Greenberg Atlas. “Vaccinations are not mandatory, that’s number one. Number two, if you have a medical condition and can’t take the vaccine, then you may have an issue with someone saying, ‘Now wait a minute, you’re holding a medical condition against me. And that’s discriminatory.’”
And that sets up the table for a lawsuit.
As a practical matter, this is a difficult rule to enforce. Presumably, the co-op will have to keep personal vaccination records on file. Will a staff member check every time a resident wants to use the gym? All this seems unnecessary when the board still has to follow strict state guidelines for reopening gyms that were designed to ensure a safe workout for unvaccinated people. The state rules include mask wearing, social distancing, improved ventilation and the regular cleaning of equipment.
“Common sense would say, ‘OK, you want your gym open? Open it and follow the guidelines,’” says Dan Wurtzel, the president of the property management company FirstService Residential New York. “The guidelines are conservative around making sure there is a minimal possibility of the virus spreading.”
Shareholders unhappy with their co-op's vaccinated-only rule could write a letter to the board stating concerns about possible discrimination and pointing out that the state guidelines do not set different rules for vaccinated people. At the very least, co-op boards should wait until all New Yorkers have ready access to the vaccine before even considering such a rule.
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