Q: My co-op’s gym has been closed since last March. The board recently decided to reopen the gym for those shareholders who are fully vaccinated against Covid-19. All others are still prohibited from using the gym. Is this legal?
A: Your board’s new rule may be discriminatory, and it certainly doesn’t make much sense. The vaccine isn’t universally available yet — as of March 26, 15 percent of adult New Yorkers were fully vaccinated. So the rule most likely excludes a majority of the building’s residents, many of whom are awaiting access. Even when the shot becomes readily available, there will still be people who don’t want to take it for health or religious reasons. Does the board really want to be in the position of policing the private medical and religious decisions of its residents?
“While I’m all in favor of getting people back to the gym, there could be some issues with this rule,” said Steven D. Sladkus, a real estate lawyer and partner in the Manhattan firm Schwartz Sladkus Reich Greenberg Atlas. “Vaccinations are not mandatory, that’s number one. Number two, if you have a medical condition and can’t take the vaccine, then you may have an issue with someone saying, ‘Now wait a minute, you’re holding a medical condition against me, and that’s discriminatory.’”
It sets up the potential for a lawsuit.
As a practical matter, this is a difficult rule to enforce. Presumably, the co-op will have to keep personal vaccination records on file. Will a staff member check every time a resident wants to use the gym? The board may not want to get into the business of storing the health records of residents.
All this seems unnecessary when the board still has to follow state guidelines for reopening gyms that were designed to ensure a safe workout for unvaccinated people. “Common sense would say, ‘OK, you want your gym open? Open it and follow the guidelines,’” said Dan Wurtzel, the president of FirstService Residential New York, a property manager. “The guidelines are conservative around making sure there is a minimal possibility of the virus spreading.”
Write a letter to the board stating your concerns about possible discrimination. Point out that the state guidelines do not set different rules for vaccinated people. If the board insists on moving forward with this policy, ask other neighbors if they would sign onto a letter with you. At the very least, the board should wait until all New Yorkers have ready access to the vaccine before it even considers this rule.
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