On Tuesday, December 21st, the City of Chicago announced to the media a vaccine mandate for certain indoor public areas pursuant to Order of the Commissioner of Health of the City of Chicago No. 2021-2. The vaccine mandate takes effect on January 3, 2022 and is due to the Omicron variant and worsening COVID-19 metrics in the City of Chicago. Below is a summary of what Chicago community associations need to know about the new Chicago mask mandate.
Does the New Chicago Vaccine Mandate Apply to Condominium, HOA or Co-op Common Elements / Areas?
No. The Order requires submission of proof of vaccination for individuals 5 years of age or older to enter indoor “covered locations” such as restaurants, bars, coffee shops, gyms, fitness centers, movie theaters, concert venues, sports arenas, bowling alleys, etc.; however, the Order expressly excludes “locations in residential or office buildings the use of which is limited to residents, owners, or tenants of that building” from the definition of “covered locations.” As such, the Order in its present form does not apply to condominium, HOA or co-op common elements / areas, including community association gyms, fitness centers, community rooms, and the like that are reserved for owners, residents and tenants only but not the general public.
Does It Apply to Restaurants, Coffee Shops, Gyms, Etc. That Are Open to the Public and Located in Mixed Use Community Association Buildings?
Yes. The Order applies to indoor “covered locations” in mixed use community association buildings that are open to the public (i.e., use is not “limited to residents, owners or tenants”).
When Does the Order Expire?
The Order expires when “the Commissioner makes a written determination that the threat to public health posed by COVID-19 has diminished to the point that this Order can be safely repealed.”
Are Masks Still Required In Indoor Common Element / Common Areas of Chicago Community Associations?
Yes. At present, Order of the Commissioner of Health of the City of Chicago No. 2021-1 (available here) remains in effect and requires masks to be worn while indoors in “any common or shared space” in a “residential multi-unit building”. There is also currently a similar mask requirement in effect for all of Cook County. Click here for our article on the current City of Chicago and Cook County mask mandate.
Last Year We Closed Our Indoor Common Element / Area Amenities -- Can (and Should) We Do So Again?
There is currently no requirement to close indoor common element / area amenities. That said, community association boards may adopt additional or stricter restrictions such as (i) temporarily closing indoor (and outdoor) common element amenities, such as hospitality rooms, fitness centers, pools, etc., and/or (ii) (re-) implementing heightened health and safety protocols (such as additional cleaning/sanitation procedures, requiring reservations for use of amenities to manage traffic flow, reorganizing amenity areas to promote social distancing, etc.) in order to protect the health and safety of all residents.
While it is anticipated that some residents may oppose additional common element / area restrictions and temporary closures, we recommend that community association boards thoughtfully consider imposing additional restrictions as appropriate during a surge in COVID-19 transmissions in Chicago to protect all residents and clearly communicate such additional restrictions to the unit owners and residents.
Note: As explained here, condominium unit owners are not entitled to a refund of a portion of their monthly assessment in the event of a temporary common element amenity closure.
Can (and Should) Community Associations Require Proof of Vaccination for Use of Common Element / Area Amenities?
Community association boards have broad authority to administer the common element / area amenities and, pursuant to this authority, may require proof of vaccination for use of such amenities via a policy or rule (similar to the vaccine mandate imposed by the Order). That said, there are several practical and administrative issues posed by a proof of vaccination requirement. For example, it may be difficult to verify the accuracy of a resident’s vaccination status (there have been high profile examples of fabricated vaccination cards being submitted), and attempting to verify each resident’s vaccination status before using the amenities imposes an additional administrative burden on the association and its management (if professionally managed). It is recommended that community association boards carefully consider all options and potential administrative and practical issues and consult the association’s legal counsel before implementing a requirement to provide proof of vaccination to use common element / area amenities.
What About Community Association Employees? Can the Association Mandate That Employees Be Fully Vaccinated? Masked?
Yes. As explained here, non-unionized employees may be required to get the vaccine, provided that the employer grants reasonable accommodations for employees unable to be vaccinated due to religion, disability, or pregnancy, as required by law, and certain SEIU Local 1 union employees may be required to get the vaccine subject to certain terms and conditions. Of course, all community association employees are subject to the current Chicago and Cook County mask mandate and must wear masks while indoors.
Where Can I Find Text of the New Chicago Vaccine Mandate?
Click here for text of Order of the Commissioner of Health of the City of Chicago No. 2021-2 (indoor covered location vaccine mandate).
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