With the first shipments of the Pfizer and BioNTech vaccine arriving in states this week, a widely available and easy-to-access COVID-19 vaccine isn’t far away.
But with some segments of the public still skeptical of getting the vaccine, could real estate brokerages require agents to get vaccinated after a certain point? It likely depends on state law and will be subject to the Americans with Disabilities Act of 1990 (ADA).
“Subject to all the ADA issues which are very valid, I think that’s something they could [require in California],” June Barlow, senior vice president and general counsel of the California Association of Realtors.
“In California, I think it’s reasonable for them to require compliance with all health orders and laws,” Barlow added. “To the extent that it would expose the brokerage if someone had it or was sick and continued to practice, it’s reasonable for them to require reasonable precautions.”
In California, the AB5 law allows employers to make requirements of independent contractors — which make up most of real estate agent workforce — as a condition of employment.
But in some states where a “control test” is in place, it’s not always clear exactly what amount of control an employer can exercise over a contractor before they are classified as an employee. The Internal Revenue Service currently has a 20-factor test to determine whether someone is an employee or contractor.
There is a historical precedent for work-place vaccination requirements, according to an employer information sheet published by Gibson, Dunn & Crutcher LLP, a New York City-based law firm.
“For most private-sector U.S. employers, current law suggests vaccinations can likely be required as a condition of employment for at-will employees,” the guide reads. “In the context of the H1N1 flu, for example, [Occupational Safety and Health Administration] guidance indicates that, so long as a private employer makes appropriate religious and medical exceptions, an employer may require vaccination as a condition of employment.”
The two carve-outs which will remain in place, are those for medical and religious exemptions. Under the ADA, employees can file claims to require a number of exemptions and reasonable accommodations, which could allow the employee to avoid getting vaccinated.
A lot of requirements will depend on federal, state and local guidance around the vaccine, as it becomes more widely available.
A source at the National Association of Realtors (NAR) told Inman that NAR is waiting to issue vaccination guidance to members after reviewing related guidance from Centers for Disease Control and Prevention, Equal Employment Opportunity Commission and other government entities.
Recent data from the nonpartisan Pew Research Center think tank found that only 60 percent of Americans intend to get the COVID-19 vaccine, which could leave real estate agents whose jobs require a lot of in-person interaction potentially vulnerable.
The good news is that real estate agents and brokerages would be well within their rights to not work with clients for any reason. In California, clients are required to disclose whether or not they have tested positive for COVID-19, or have any symptoms, prior to meeting with agents.
“If you say, look, you’ve been violating every health order, I see you out in the streets, I don’t want to expose my agents, then you can always turn down clients,” Barlow said.