In our last email newsletter, we discussed recent changes to masking guidelines announced by the Centers for Disease Control. At that time, Illinois had not officially taken a position on masks, other than to vaguely indicate that new orders consistent with the CDC guidelines would be forthcoming. On May 17, 2021, Governor Pritzker issued Executive Order 2021-10. Shortly thereafter, the City of Chicago announced its own new mask policy, which is consistent with Illinois orders. In short, effective immediately in Illinois, fully vaccinated Illinois residents are no longer required to wear masks in most situations, indoors or out. Individual business (including not-for-profit residential associations) may continue to impose mask requirements that are stricter than what is required under current CDC, IDPH, and CDPH guidelines. Interestingly for Associations, both Illinois and Chicago have placed the burden on businesses to verify vaccination status of patrons (or in the case of associations, users of common areas and amenities) if they will loosen or waive all mask requirements. This places residential associations in an interesting position.
In our last email update on this topic, we advised that associations should not participate in verifying the vaccination status of residents. We stand by this advice as best practice, even in light of updates to Illinois and Chicago guidance. Specifically, previously discussed rationale (avoiding conflict, reducing liability, low risk for vaccinated residents) still applies. We also continue to believe that associations should continue to urge mask wearing by all residents, to avoid any doubt. However, the more governmental requirements are eased, the more likely it will be that association residents will be resistant to continue masking up every time they leave their units or use common amenities. So, then, how can associations reduce or eliminate mask requirements while complying with the requirement to verify vaccination status?
We believe that a self-certification program is the best method to “verify” vaccination status, while keeping the association’s risk of liability low. This can be done by requiring residents who use common amenities or who attend Association events to execute a waiver where they essentially self-certify that they are vaccinated (or will wear a mask). The waiver should also require all users of common amenities to confirm their understanding that the risk of contracting COVID is not zero, and that the Association is not making any warranties about the safety of the event/amenities. By proceeding in this way, the association will be complying with the verification requirement. While the State and City recommend certain verification techniques such as checking vaccination cards and using wristbands or hand stamps (much like a bouncer at a bar would verify age of entrants), such techniques are not required, and being able to demonstrate that all unmasked participants have self-certified vaccination status seems just as effective. (If someone wants to fake a vaccination card they will, just as someone might falsely certify that they are vaccinated. In short, all methods of vaccination verification rely on the honesty of entrants to a certain extent.) Further, by proceeding via self-certification and waiver, the Association can make it clear that – while it is taking steps to “verify” vaccination status – it is not insuring accuracy of that verification. Hence, those who cannot or choose not to be vaccinated, or those with compromised immunity or who are generally more nervous about rejoining group activities, can make their own decisions based on this understanding.
As we learn more about the practical application of lifting the mask mandates, we will provide additional recommendations and advice. In the meantime, please do not hesitate to contact us with your questions.
(Dawn Moody dlm@kmlegal.com; Gabby Comstock grc@kmlegal.com;
and Karen Beverly klb@kmlegal.com).