Building Employees: Can You Require Vaccination?

A sea change. In a major victory for co-op and condo boards – and a major shift by organized labor – the union representing service employees has agreed to allow employers to mandate that their unionized employees receive the vaccine against COVID-19. After months of negotiation, a Memorandum of Agreement was reached in late September by the Realty Advisory Board (RAB), which represents New York City’s real estate interests, and Local 32BJ of the Service Employees International Union, which represents a total of 175,000 building employees, including doormen, porters, security guards and other professions.

A stick, not a carrot. Under a previous agreement, employees were “encouraged” to get vaccinated. Under the new Memorandum of Agreement, employees can still seek an exemption from vaccination due to a religious belief or health condition. But now, for the first time, employees who have not received such an exemption and still decline to be vaccinated face stiff penalties. These include an unpaid leave of absence of up to four months, or until the employee receives the vaccine; or placement on a recall list until March 1, 2022, or until the employee gets vaccinated or the vaccine mandate is lifted. Employers must provide paid time off for an employee to get vaccinated or to recover from any vaccine side effects.

“My co-op and condo board clients have been using as many carrots as they could to persuade their employees to get vaccinated,” says William D. McCracken, a partner at the law firm Ganfer Shore Leeds & Zauderer. “This, finally, is a pretty big stick. It hits the reluctant employees in the pocket book. I suspect this is going to persuade a large percentage of the holdouts to get the vaccine.”

Reason for refusal required. If employees do not want to be vaccinated, they must provide the reason for their refusal, including whether they have a protected disability under the Americans With Disabilities Act or a religious belief protected by the Civil Rights Act.

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. Boards 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.”

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, any mandatory vaccination must comply with all federal, state and local laws, and it must “reasonably accommodate” an employee’s disabilities or religious beliefs. Boards should have their attorney review any mandatory vaccination policy before enacting it.

The breakthrough Memorandum of Agreement has delighted co-op and condo advocates. “We’re thrilled that they were able to reach a deal,” says Michael Rogoff, president of the property management company AKAM and a member of RAB’s residential committee. “The talks have been progressing in this direction for a while. This is the deal we’ve been waiting for.”

Andrew I. Bart is an attorney at Borah, Goldstein, Altschuler, Nahins & Goidel. He specializes in real estate litigation and employment law.