Ask the Association Attorneys: COVID-19 Edition
During the height of the pandemic in 2020, associations forced to cancel or severely downsize their events were most often seeking legal advice about using force majeure clauses to release themselves from expensive event contracts. Now, said Jeffrey Tenenbaum, Esq., and Nisha Thakker, Esq., both of the Tenenbaum Legal Group. PLLC, associations focus on:
- How to safely reopen workplaces
- How to return to in-person meetings safely
Tenenbaum and Thakker answered some common questions associations currently have about navigating in-person workplaces and events during the ongoing pandemic.
Please note: This content has been interpreted as faithfully as possible from the 2021 ASAE Annual Meeting session, “Evolving Legal Considerations During and Beyond COVID-19: Ask the Association Attorneys.” But it is not intended to serve as legal advice. Please consult your organization’s legal counsel about your specific situation before making any decision that could impact your organization’s liability.
Most associations are targeting the day after Labor Day as their office reopening day. Can they require vaccines or masks?
When it comes to vaccination requirements or masking guidelines for in-person office activity, Tenenbaum recommends following CDC guidelines as well as state and local guidelines. But this question about health requirements is really two questions:
- Should you require vaccination or masks (or both)?
- Is it legal?
You should do what is best for the health and safety of your members and staff, in part based on what they would like to see happen. Legally, you can mandate vaccination as a requirement to come to work, and you can terminate employees who refuse to comply. But you must make exceptions for those with sincerely held religious beliefs as well as for people with disabilities for whom getting vaccinated poses more risk than benefit. Then, you must make reasonable accommodations for them to complete essential job duties without compromising the health of your other employees.
Reasonable accommodations could look like:
- Remote work
- Regular COVID-19 testing
- Private office or working space
- Required masking
If a person cannot perform their job reasonably with accommodations, or if the available accommodations don’t work for a person’s core job responsibilities (for example, remote work isn’t possible for most healthcare settings), they can be terminated. An organization is within their rights to require health and safety measures that protect others. If an employee chooses not to abide by those requirements, they do not have the right to continue working there.
Whatever you require, your rules should be clear, objective, and consistent.
Can employers ask for proof of vaccination? How should we store that information?
Asking about vaccination status or requiring proof of vaccination is legally permissible. As for proof, most businesses are going by the honor system. But for those that are asking for tangible proof—a vaccination card, for example—to stay in compliance with HIPAA regulations, you cannot store that info with their regular employee files. It must be stored separately. Tenenbaum recommends storing the smallest amount of information relevant to the issue and sharing it among the smallest number of people on your leadership team necessary to process the information. Many associations are keeping spreadsheets with just names, place of vaccination, and date of last vaccine.
Getting back into in-person events: Should associations have employees, visitors, guests, sign liability waivers?
The answer differs for employees and non-employees. Most states do not allow employees to waive their rights to workers’ compensation (or conversely, do not allow employers to force their employees to agree to limited liability). Your association cannot ask your employees to sign COVID-related liability waivers in order to come back into the office.
But for everyone else—visitors, clients, food delivery—you can. These are waivers that guests sign attesting that they understand that visiting your office poses a risk of exposure, and they will not hold the company liable if they get sick. These types of waivers are becoming the norm, Tenenbaum says, much like most websites ask permission to drop cookies on your computer.
The same approach to liability waivers applies to conferences and meetings. A meeting host (your association) can require precautionary measures like masks or vaccinations. They should also have attendees sign an attestation form on which the attendee self-confirms they do not have a communicable disease while attending your event and agree to abide by all health and safety measures. If you ask attendees to complete waivers electronically, make sure it’s an affirmative click and separate from any other codes of conduct or event agreements you ask the attendee to sign.
“If someone has a medical condition that makes it risky for them to receive a COVID vaccine, then you would need to make a reasonable accommodation for them if you have a vaccine mandate for volunteers.”
Is a liability waiver enough to protect your association from being sued for a COVID outbreak?
No, says Tenenbaum, you should do more. You want to ensure you’re not negligent in how you conduct the meeting for your conference. If disease spreads, or another negative event happens, you can still be held liable if it’s found you didn’t do everything reasonably possible to protect attendees. What do you have to do to protect yourself against being negligent?
- Comply with state and local mandates regarding health and safety. These are binding rules that you must abide by if you don’t want to be open to liability in a court of law.
- Look to federal guidance. These may not be binding (state/local laws take precedence), but they are relevant in establishing a standard of care you should take to not be considered negligent. You may not be able to do everything contained in these guidances, but your venue should be following them. Talk with your venue staff ahead of your event to find out what they’re doing to keep guests healthy. Write the precautions you want the hotel to provide into your event contract.
A lot of venues are interested in carving out their liability for the spread of COVID at guest events. Pay attention to the language in your contract to ensure it works for your association. Tenenbaum offered a model liability waiver for associations to use with their attendees.
When booking a hotel room block, it’s hard to say how many rooms you will actually use 6 months/a year from now. What can you do?
Ask for a room block review clause. This is a relatively new tool associations are using. A room block review is when your association gets with your venue at an agreed-upon number of days out from your event (typically 60, 90, or 180), and revises your room minimums based on travel and attendance forecasts grounded in data-based current events. If it looks like the pandemic will be subsiding and people are allowed to travel, you might keep your room minimums optimistic. But if COVID cases are rising, or states/countries are locking down again, you’ll reduce your room minimums because people can’t travel.
Many hotels are willing to do these room block reviews because they’re hungry for business. They’re not always willing to forfeit deposits, however. If your room or food and beverage needs decrease dramatically, you might not get your money back but you can usually get a credit at the venue for future events. Savvy associations are including a “resell clause” into their hotel contracts: If you won’t meet your original room minimums because of external factors related to public health, the hotel must make every effort to resell rooms you won’t use, and give you any deposits back.
If an association must cancel its event, many are working their way out of cancellation penalties by applying their deposit to a future event at that venue. Tenenbaum noted that there are more details and rights to cancel being written into venue contracts, including the right to rebook at the same property within 12, 18, or even 24 months.
COVID should not be the only triggering event you name in your contracts. There are many things that can go wrong at an event. Include a clause that covers all unforeseen events. For example, some states are prohibiting travel to other states that pass discriminatory laws. That can qualify as a force majeure event that can get your association out of a contract without penalty.
The legal landscape surrounding COVID is constantly changing. We’re not in a post-COVID world yet. The guidance here might change next week, so consult with your legal counsel before taking any action. Remember that just because you’re legally able to do certain things doesn’t mean you should. Ultimately, you should base your COVID-related decisions on the direction of your association, and the feedback you’re getting from your stakeholders. Caring about your staff and members should come first. Look for compassionate, workable solutions that work for the most people.
Jeff Tenenbaum is one of the nation’s leading nonprofit attorneys, and also is an accomplished author, lecturer, and commentator on nonprofit legal matters. As Managing Partner of the Washington, DC-based Tenenbaum Law Group, Jeff counsels his clients on the broad array of legal issues affecting trade and professional associations, charities, and other nonprofits. For 19 years, Jeff practiced law at the Venable law firm and chaired its nonprofit practice for most of that time. Among numerous other honors and awards, Jeff was the 2006 recipient of the American Bar Association’s Outstanding Nonprofit Lawyer of the Year Award and is one of only five lawyers in the prestigious U.S. Legal 500’s Not-for-Profit “Hall of Fame.” Jeff is the author of the ASAE-published book, Association Tax Compliance Guide, and currently serves as Chair of the American Bar Association’s Trade and Professional Associations Subcommittee and on the ASAE Legal Advisory Council and Public Policy Committee.
Nisha Thakker is an experienced in-house nonprofit attorney and senior-level business partner. Formerly the associate general counsel of a large REALTOR® association in Northern Virginia, she has a broad understanding of nonprofit legal matters as well as business operations, governance, and development. Through her recent work at a Washington, DC-based association management company, Nisha advised her association clients on operational efficiencies and risk-management considerations. She also served as an advisor to several of the company’s additional clients and provided in-house association legal counsel company-wide.
