HOA board members have had a lot to worry about over the last year. The COVID-19 pandemic has rocked communities, and HOA boards have had to respond to difficult questions. How can we help struggling homeowners? How do we hold board meetings during a pandemic? Can elections be held by video or teleconferencing? When can we reopen community-shared amenities? The questions seem never ending, and there is another one on many HOA board members’ minds.
As recounted in this article from a Dallas community, HOAs have been concerned about the disclosure of personal health information since the onset of the pandemic. The effort to collect names of exposed or infected individuals, though spurred by good intentions, was challenging. According to a local attorney in the Dallas area, “Residents don’t have to tell their HOA or property manager if they’ve been exposed to or even contracted COVID-19.” Health information is generally regarded as private.
The question now focuses on vaccines. Can HOA board members seek a new level of disclosure based on vaccine status? It’s a question of public health. The more individuals in the community that are vaccinated, the greater the protection as a whole in the community. Higher numbers of vaccines would allow communities to return to pre-COVID operation protocols and activity schedules. That said, there is a huge question of privacy.
Private Health Information
The most well-known federal statute regarding health care privacy and security is the Health Insurance Portability and Accountability Act or HIPAA. Congress passed HIPAA in 1996 to organize and simplify the law on privacy, security, and electronic transactions of health information. HIPAA requires particular privacy standards when “covered entities” and “business associates” handle private health information. It also provides administrative, physical, and technical security requirements, notification requirements in the event of a data breach, and standardized practices for processing health care claims. HOAs are not, however, covered entities or business associates that are authorized or covered by HIPAA to use or store health information.
The pandemic hasn’t changed the health law landscape dramatically, but it has opened more doors for state and local regulation of public health behavior. Many states and localities have implemented masking and social distancing requirements. These rules have resulted in fewer social gatherings and consequences for failing to wear personal protective equipment.
Laws and rules implemented by the government are a great place for an HOA board to start. Board members must know what the current rules and regulatory framework look like so that they can best decide how to move forward in their own communities. Be sure to contact your attorney for more information on federal and state rules that impact the disclosure of health information.
Possible HOA Actions
Without express authority from federal or state law, the best place to start the search for opportunities to collect health information in the HOA’s governing documents. The covenants, conditions, and restrictions (CC&Rs) may provide provisions for the board to have broad rule making authority. On the other hand, the CC&Rs may also give the board authority over common or shared spaces. If the CC&Rs don’t provide any special rule making authority, the board will struggle to implement a health disclosure requirement, even in times like these.
HOAs could look at the community’s existing policies as well. If the board was able to encourage self-reporting health conditions over the past months, it may have a basis for continued health information collection. Relatedly, the board likely has implemented policies for mask wearing, social distancing, and occupancy numbers. These policies, if agreed and adhered to, provide another starting point for increased transparency in homeowner self-reporting health status.
The Bottom Line
Requiring homeowners to disclose vaccination status (or even a mandated vaccination) may not be legal. The only way to know for sure in your jurisdiction is to request legal advice from your attorney. Each state, locale, and community association is governed by a different set of statutes and common law.
Residents have a right to decline the vaccine, so it is unlikely that a mandated vaccination would hold up legally. HOA boards could even face tort liability for forcing anyone to be exposed to the vaccine for purposes of continued living in an HOA.
Even if an HOA was successful collecting voluntarily self-reported data, HOAs would have little power to disseminate the information. No personal or identifying information can be revealed o the community. No one would have the authority to broadcast information on names or addresses of those who received the vaccine. The question then is whether or not the self-reported information is truly helpful to the community.
If you are interested in implementing a disclosure program, contact your legal team to address the potential legal roadblocks. Although this idea is intended to increase public safety, the law has to weigh deep-seated personal interests in privacy with those in public health.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice. The content on this site is for general informational purposes only. Links to third-party websites are for convenience; MaxHOA and its contributors do not recommend or endorse the contents of the third-party sites.