With the continued rollout of COVID-19 vaccines to curb the spread of the coronavirus, some employers are making vaccination compulsory for their staff. Some companies are even going so far as to restrict access to their premises if people are unvaccinated. But what does this mean for the real estate industry?
Here’s how brokers can navigate this new gray area in your real estate business while protecting against lawsuits.
Understand Workplace Anti-Discrimination Laws
The United States Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws, such as the Americans with Disabilities Act (ADA), Age Discrimination in Employment Act and Title VII of the Civil Rights Act. Current guidance from the EEOC is that the federal EEO laws do not prevent an employer from requiring all employees physically entering a workplace to be fully vaccinated against COVID-19, subject to reasonable accommodations and EEO provisions.
In some circumstances, employers must provide reasonable accommodations to employees who, because of a disability or a religious belief, practice, or observance, do not get vaccinated, unless this would pose an undue hardship on the business.
Some examples of reasonable accommodations include:
- Mandated mask-wearing
- Social distancing
- Modified shifts
- Periodic testing for COVID-19
- Remote work/work from home opportunities
To be lawful, employers must not apply the vaccination requirement in a way that treats employees differently. For example, the mandate cannot be based on a disability, race, color, gender, age or other grounds outlined in the legislation unless there is a legitimate nondiscriminatory reason for this.
Other Relevant Laws
According to the National Association of REALTORS®, some states and local governments are imposing vaccination mandates. The President also announced late last year, that the Department of Labor’s Occupational Safety and Health Administration (OSHS) will require employers with 100 or more staff to ensure their employees are either fully vaccinated or produce weekly negative COVID-19 tests. These employers will be required to provide paid time for all employees getting vaccinated, and they must ensure all unvaccinated staff wear a mask at work. Further information about these policies is available on The White House website: https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/
Keep Updated with the Latest Information
While anti-discrimination laws continue to apply during the pandemic, employers also need to be mindful of the latest health advice from the government. As health advice and directives are subject to change without notice, brokers should try to keep up-to-date with guidelines from their state and local public health authorities to ensure you maintain adequate safety in the workplace.
The EEOC website has a wealth of information and resources for employers which is continuously updated: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
You can also access the latest in COVID-19 information on the Centers for Disease Control and Prevention website. Just select your location and access information relevant to your local area: https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-county.html
Be Prepared to Handle Exceptions
If mandating vaccinations in your brokerage, you must be prepared to handle exception requests as they arise. Be prepared to implement accommodations where necessary for those that meet the exception criteria. Brokers should also be prepared to act on any non-compliance of your mandatory vaccination policy, where an exception has not been granted. The reality is you may lose some staff.
According to the National Association of REALTORS®, brokers are within their rights to evaluate the legitimacy of any exception request. You can ask for further information to evaluate the legitimacy of a medical issue or religious belief or practice. Although, they recommend employers presume requests are legitimate unless you have some grounds to question their legitimacy.
Asking Staff for Proof of Vaccination and Recordkeeping
It is lawful for employers to ask staff for proof of COVID-19 vaccination. As with any personnel information, brokers need to ensure that any medical or other information is kept private and confidential. The ADA does require that all medical information is to be stored separately from the employee’s personnel file to limit access to this confidential information.
No Vaccinations in the Workplace
It is recommended by the National Association of REALTORS® that any vaccinations are obtained off-site and not done in the workplace. While there are no laws preventing on-site vaccinations, it is best practice to allow your staff to obtain the vaccine on their own through a doctor or pharmacy. This is because the pre-vaccination questionnaire may involve asking about disability information in violation of the ADA. On-site vaccination could increase your risk, as a broker, and may make you more vulnerable to a lawsuit.
Dealing with Clients
Brokers have a responsibility to keep staff safe. That means implementing COVID-safe policies, where necessary, at your brokerage to limit the spread of COVID-19. These policies will vary from brokerage to brokerage, but often a COVID-19 screening questionnaire is used for clients when planning in-person visits or showings. Typical questions include:
- Have you tested positive for COVID-19 in the past 14 days?
- Have you been in contact with someone with COVID-19 or someone with symptoms of COVID-19 in the past 14 days?
- Have you had any COVID-19 symptoms in the past 14 days? (Such as cough, sore throat, runny nose, loss of smell etc.)
- Have you been fully vaccinated against COVID-19?
You can also lawfully require attendees at in-person events to provide proof of vaccination. However, when considering policies like this, brokers need to consider the risk of COVID-19 transmission, and whether the opportunity can be provided in a virtual environment to accommodate those unvaccinated due to disability or religious beliefs.
Get Legal Advice and Maintain Your Insurance
CRES E&O+ClaimPrevent® offers E&O Insurance tailored to real estate risks, and access to expert legal advice through our highly qualified team of attorneys. CRES can help you to better manage your risk when navigating COVID-19 vaccination mandates so you can prevent a lawsuit.
We have access to more coverage options than just about anyone, because we’re part of one of the largest insurance brokers in the world. Let us find you the best real estate E&O coverage at the best price. For further information, contact us at 800-880-2747 for a confidential discussion.