The Vaccine Quandary

The situation. The release of two COVID-19 vaccines raises an urgent question: Can co-op and condo boards require their employees to get vaccinated?

The back story. In December 2020, the U.S. Equal Employment Opportunity Commission published new guidelines stating that any employer could require employees to receive the vaccine and could bar from the workplace anyone who refused. Does that mean that co-op and condo boards – which not only have to worry about discrimination but also must work closely with Local 32BJ of the Service Employees International union – have the power to compel vaccination?

The upshot. “Unless there is a really strong health or religious reason that someone can claim an accommodation has to be made, then the employer’s wishes are usually going to be upheld,” says David Berkey, a partner at the law firm Gallet Dreyer & Berkey. “And even in circumstances where the request is made for an accommodation, if it turns out that an accommodation would be creating an undue hardship on the employer, it’s possible that that would be upheld, too.”

Translation. Unlike many office workers, most co-op and condo employees cannot do their work from home. If an accommodation can be made – for example, isolating an unvaccinated staffer – the board can work with the employee. If an accommodation cannot be made because the worker is in close contact with others, refusal to be vaccinated can be grounds for termination, even if the staffer is a union member.

“Most union contracts these days would not protect an employee who arbitrarily refuses to be vaccinated,” Berkey says. “The union will look to see whether or not the obligation to consider reasonable alternatives has been met. If not, the union can say the employer acted improperly. But if a board does consider alternatives, it would be much more difficult for the union to take that position.”

What the union says. According to a 32BJ spokesperson, “We are working closely and collaboratively with employers as we have throughout the pandemic to make sure workers and tenants are safe.”