Q: My cooperative's gym has been closed since last March. The board recently decided to reopen the gym to those shareholders who are fully vaccinated against Covid-19. All others are still prohibited from using the gym. Is that legal
ON: Your board's new rule can be discriminatory and certainly doesn't make a lot of sense. The vaccine isn't widely available yet – by March 26, 15 percent of New Yorkers were fully vaccinated. So the rule most likely excludes a majority of the building's residents, many of whom are waiting to enter. Even if the shot is available immediately, there will still be people who do not want to take it for health or religious reasons. Does the board really want to be able to oversee the private medical and religious decisions of its residents?
"While I'm all for getting people back to the gym, there could be some problems with this rule," said Steven D. Sladkus, real estate attorney and partner at the Manhattan law firm Schwartz Sladkus Reich Greenberg Atlas. "Vaccinations aren't mandatory, that's number one. Number two: If you have a disease and can't take the vaccine, you may have a problem with someone who says," Wait a minute, you have an illness against me, and that's discriminatory. "
It creates the potential for a lawsuit.
In practice this is a difficult rule to enforce. Presumably the cooperative needs to keep personal vaccination records. Will an employee check every time a resident tries to use the gym? The board of directors may not want to start storing residents' health records.
All of this seems unnecessary if the board of directors is yet to follow state gym reopening guidelines designed to ensure safe exercise for unvaccinated individuals. “Common sense would say, 'OK, you want your gym to be open? Open it up and follow the guidelines, ”said Dan Wurtzel, president of FirstService Residential New York, a property manager. "The guidelines are conservative to ensure that the virus can only spread to a minimal extent."
Write a letter on the board explaining your concerns about potential discrimination. Point out that government policies do not set different rules for people who are vaccinated. If the board insists on continuing this policy, ask other neighbors if they would sign a letter with you. At the very least, the board should wait until all New Yorkers have access to the vaccine before even considering this rule.
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