Andrew I. Bart in Legal/Financial on September 21, 2021
Can co-op and condo boards order mandatory vaccination of their building employees in an effort to slow the harrowing spread of the Delta variant of COVID-19? The answer depends on whether the building employees are unionized and on the collective bargaining agreement governing the terms of their employment. A board cannot impose a mandatory vaccination policy if its building employees are members of Local 32BJ of the Service Employees International Union because of a recent agreement between the union and the employers’ representative.
Local 32BJ and the Realty Advisory Board (RAB), which negotiates with the union on behalf of building owners, have entered into a memorandum of agreement that addresses vaccination policies and modifies their collective bargaining agreements. If your building employees are represented by Local 32BJ, as are most employees working in New York City’s commercial and residential buildings, your cooperative or condominium’s actions are governed by this memorandum of agreement.
A carrot, not a stick. Recognizing that there was a “growing trend of tenants and institutions requiring vaccination of employees, visitors and vendors,” the agreement does not permit mandatory vaccinations but instead “encourages” employees to get vaccinated. Co-op and condo boards are to provide employees with information about where they can obtain the COVID-19 vaccine near the worksite and also provide employees access to a computer to help with registration. Employers must provide paid time off for an employee to get vaccinated and to recover from any vaccine side effects.
Tests and proof of vaccination. Co-op and condo boards can implement regular COVID-19 testing requirements, and they can require employees to wear masks and practice social distancing. They can also require vaccinated employees to provide proof of vaccination, and they can ask both for proof that an employee has requested a vaccination appointment and for the appointment notification itself.
Proof of vaccination can be a copy of the Centers for Disease Control’s COVID-19 vaccination card, an Excelsior Pass or a doctor’s letter. This proof must be kept separate from the rest of the employee’s personnel files. Co-op and condo boards cannot disclose an employee’s individual vaccination status, but they can disclose the percentage of employees in the aggregate who have been vaccinated. As in: “90% of our doormen are fully vaccinated.”
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Reason for rejection required. If an employee does not want to get vaccinated, she must provide the reason for her refusal, including whether she has a protected disability under the Americans With Disabilities Act or a religious belief protected by the Civil Rights Act.
Preventive measures. Co-ops and condos must provide their employees with masks if they do not have their own, supply them with hand sanitizer and provide them with a break room that allows employees to remain at least six feet apart.
Resolving disputes. The RAB and Local 32BJ also agreed to set up a joint labor-management committee governing residential buildings to resolve disputes relating to any employer, tenant or building management seeking to impose a mandatory vaccination requirement, or any other disputes arising out of the agreement itself.
Mandates for non-union employees. If a building’s employees are not Local 32BJ members or are not governed by a similar collective bargaining agreement, the board may implement a mandatory vaccination policy. However, boards will have to weigh the various complex legal and personnel issues that may arise. Any mandatory vaccination must comply with all federal, state and local laws, and it must “reasonably accommodate” an employee’s disabilities or religious beliefs.
Do not enact a policy that might be considered discriminatory based on race, national origin, or any other protected category. And consult with an attorney before enacting a mandatory vaccination policy.
Andrew I. Bart is an attorney at Borah, Goldstein, Altschuler, Nahins & Goidel. He specializes in real estate litigation and employment law.
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