NAVIGATING COVID NOW
By now, almost everyone knows someone affected by COVID-19. This year, I lost my grandmother to COVID-19 while she was in a nursing home. She died alone because the nursing home would not admit family members because of COVID-19. A month ago, my father, who is fully vaccinated, had a “breakthrough” COVID-19 case and contracted the Delta variant. The ambulance rushed him to three hospitals that were completely full before a fourth hospital admitted him to give him fluids and oxygen to save his life. If you and your association have not implemented any actions or policies to attempt to reduce the spread of COVID-19, please do not wait any longer. This article discusses the latest developments in the law to minimize the spread of COVID-19.
I have been informed by the First Deputy Corporation Counsel for the County of Maui that rules have been submitted to the Governor’s Office to be effective September 15, 2021 to prohibit in-person meetings for associations. The rule is: “In accordance with Act 83 (2021), condominium and other similar associations must conduct meetings remotely in a manner consistent with state law.” While not entirely clear, it appears this rule will apply to both board and owners’ meetings.
Act 83 enacted by the Governor on June 24, 2021 amends the law for condominium associations, HRS § 514B-121, to allow electronic meetings and electronic, machine, or mail voting during any period in which a state of emergency or local state of emergency is in effect in the County in which the condominium is located, despite the language in the association’s governing documents. It also amends the community association law, HRS § 421J-3.5, to allow associations to conduct owners’ meetings remotely subject to certain requirements notwithstanding any provision to the contrary in the association documents.
There is presently a state of emergency. Therefore, association meetings after September 15, 2021 should be conducted electronically/remotely. The most widely used and effective methods seem to be GoToMeeting or Zoom, and Zoom allows owners to cast votes during the meeting.
There are several benefits to electronic meetings. It obviously reduces the risk of spreading COVID-19, thus reducing any liability to the association. It also allows greater participation by owners at a lesser expense, particularly off-island owners who are following the Governor’s request on August 23, 2021 – “It’s not a good time to travel to the islands.” Hospitals, including Maui Memorial, are over-crowded and beds are literally in the hallways. It is not a good time to encourage owners to attend meetings in person. While proxies are always an option, Robert’s Rules of Order discourages the use of proxies and many owners do not like them.
In addition, directors and management can easily share their screen during electronic meetings allowing for power point presentations and sharing of photographs. Owners tends to conduct themselves more civilly and professionally on electronic meetings, perhaps because of the ability to mute any owners who use profane or offensive language. Utilizing Zoom polls, electionbuddy or other electronic voting method or mailed ballots in advance of the meeting also reduces the time of the meeting and potential error and allows votes to be quickly tabulated and announced.
Mandating Vaccinations for Employees
You have likely heard that many employers – including the State of Hawai’i – are mandating vaccinations for employees or weekly COVID-19 testing for those employees who refuse to vaccinate. The U.S. Justice Department issued an opinion on July 6, 2021 that concludes: “We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs.” Since issuance of this opinion, and with the U.S. Food and Drug Administration approval of the Pfizer-BioNTech COVID-19 Vaccine on August 23, 2001, many employers are now requiring employees to be vaccinated.
Employers may terminate employees that refuse to be vaccinated if those employees present a direct threat to the safety or health of themselves or others in the workplace that could not reasonably be accommodated. To determine if a direct threat exists, employers should conduct an individualized assessment of four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. A determination that an individual presents a direct threat would “include a determination that an unvaccinated individual will expose others to the virus at the worksite.” For example, an employee that works at the front desk and interacts daily with many people is more of a direct threat than an employee that performs landscaping outdoors and interacts with no one. If not a direct threat, the employer may instead want to require wearing a mask at all times rather than requiring vaccination.
Critically, there are exceptions where an employee cannot require an employee to be vaccinated. Employers must make accommodations for religious beliefs, disabilities and pregnancy related objections.
Some associations are concerned about losing employees if vaccinations are required and are instead offering incentives, such as a monetary bonus and paid time off to get the vaccination, to those employees who are fully vaccinated.
If requiring vaccinations and/or COVID-19 testing, it is recommended to implement a policy in order to avoid asking pre-screening questions that could violate the prohibitions against disability-related inquiries. It is recommended to consult with your association attorney or even an employment attorney to develop a policy.
Mandating Vaccinations for Others
Can associations mandate vaccines or proof of vaccination for people who come to the property?
The law is not fully developed in this area, but at this time, mandating vaccinations for owners, residents, or vendors or requiring proof of vaccinations is not a good idea. It opens a can of liability worms.
People may have medical or religious reasons for not being vaccinated, which will require the association to determine whether these exceptions are valid. Children under 12 currently cannot be vaccinated, but the association cannot ban children from facilities without a potential violation of the Fair Housing Act. A wrong step may result in a discrimination or an invasion of privacy claim. We recently had a case where an owner refused to allow an association vendor to enter her unit without being vaccinated. When asked for vaccination proof, the vendor refused to disclose asserting a privacy right thus creating a legal issue.
Association boards can require masks and social distancing because the County and State laws require it; however, there is no federal, State or County law mandating vaccinations at this time. There is nothing in the Condominium Property Act that provides the board authority to require residents to subject themselves to vaccines to access and live in the condominium project.
You have likely heard of the “vaccination passports” or “Safe Access Oahu” that will allegedly be implemented on Oahu on September 13. People will need to show proof of a COVID vaccination or a negative COVID test within the past 48 hours to get into restaurants, bars, museums, movie theaters, commercial pools, and gyms on Oahu. You may have also heard that large venues, such as concert halls, require proof of vaccination. Public venues can require vaccination because no one is forced to attend a concert, however, owners and tenants have a legal right to use the common elements. Owners have an interest in and easement to use the common elements and facilities, and an owner may claim the association breaches this right if it restricts use for owners and their tenants, guests and family.
Requiring vaccinations or proof of vaccination for vendors may limit the number of vendors available and increase costs. If the association places a limitation on owners’ vendors, owners could sue the association for interference with contractual relations. It may, however, be reasonable to require vendors to either show proof of vaccination or negative COVID-19 test in the last 72 hours, which is not as intrusive as requiring a vaccination.
Enforcement may be difficult and potentially expensive. COVID vaccination cards are pieces of paper that can easily be forged. Most associations do not have the manpower to request and review vaccination cards from every visitor to the property. However, there is new vaccine verification app, Excelsior Pass, which may make it easier for associations to verify vaccination or negative COVID tests.
Mandating Masks and Other Protection Measures
Before the recent outbreak this summer, I travelled to the mainland. Coming from Hawai’i, I was shocked to walk into a packed Las Vegas casino to find everyone, and I mean everyone, unmasked. There were signs posted everywhere stating “Masks are required for unvaccinated persons”. Obviously not everyone was complying and there was no enforcement, nor any viable way to enforce. I found the same thing in Arizona, California, Washington and Oregon. Not surprisingly, there were massive outbreaks of COVID-19 and masks are now required indoors in these western States.
In Hawai’i, masks are currently required inside. Governor Ige’s Emergency Proclamation of August 5, 2021 states: “All individuals shall wear face coverings over their noses and mouths when in public settings.” There are exceptions, such as individuals with medical conditions, children under the age of 5, while eating, drinking and smoking, and while outdoors. The Proclamation explains: “the recorded number of cases and deaths has continued to increase, with more than 44,617 documented cases of COVID-19 in the State and 538 deaths attributed to this disease”.
Associations should require all persons, whether or not vaccinated, to wear masks inside any association facilities – lobbies, meeting rooms, etc. While not common, fully vaccinated persons can contract and spread COVID-19, and particularly the Delta variant.
There are several other precautions to implement. Associations should encourage people to socially distance that are not from the same residence or household. Display signs in highly visible locations that promote social distancing and handwashing and have sanitizer available. Implement rules to limit occupancy in small, enclosed spaces such as elevators and gyms, or even consider closing the gym. Limit association facilities to residents only – do not allow residents to bring in outside guests. Do not host social events or happy hours that result the potential spread of COVID-19.
The sooner we reduce the spread of COVID-19, the sooner our world can go back to “normal” and Hawai’i’s economy can recover. I encourage you to implement policies and strategies to do your part to help your association or your association clients and Hawai’i.