Here’s a question a client of ours posed last week. Since I think it’s bound to come up a lot more once the weather warms up and COVID-19 restrictions are eased, I thought it might be worth while to post my brief response. I’ll post another blog on this subject in the near future.
“I’m on the board of a medium-sized association in Orange County and a proposal came up at our last Zoom meeting to require members who wish to use the community pool and tennis courts to prove that they’ve received one of the COVID-19 vaccines. I don’t think we can do that, can we?”
Obviously, we are in new territory when it comes to COVID-19 regulations, so it’s very difficult to predict how courts will act when faced with these types of novel questions. That being said, while there are no laws that I can think of that would specifically prevent an HOA from passing such a rule, I don’t think such a rule would be enforceable if it was challenged in court. I can think of several constitutional issues that would arise if your HOA tried to pass such a rule (e.g., religious beliefs and the right to medical privacy). There are also public policy grounds to prohibit such overreach on an HOA’s part, such as equal protection (e.g., Why is this virus different than other serious viruses?) or valid exceptions (e.g., allergy conditions that make most vaccinations impossible).
In short, I think your HOA would be inviting massive litigation if it tried to pass such a rule.