Guidance on how to handle vaccine policies for brokerage offices, and the showing and leasing of properties.

The Occupational Safety and Health Administration issued an Emergency Temporary Standard to establish COVID-19 vaccination, verification and testing requirements for employers with more than 100 employees.  While the applicability of this federal mandate may be limited for real estate, brokerages must also be aware of any vaccine rules at the state and local level.  For example, in New York state, all businesses must require that anyone entering the premises show proof of vaccination or require everyone to wear masks indoors regardless of vaccination status. This means that brokerages in New York not only have to follow these rules for their offices but also with property showings, open houses and in-person events.  

Therefore, it’s important to be familiar with and consider all applicable rules and regulations before implementing a vaccine policy. Here are some tips and best practices for brokerages to consider when providing their services in light of the ongoing pandemic: 

Can a broker require their independent contractor agents be vaccinated? 

Since the OSHA ETS does not cover independent contractors, real estate brokerages are not required implement a vaccination verification and testing plan. However, given the public health threat posed by COVID-19, it may be prudent for real estate brokerages to establish a vaccine policy for its businesss. For example, a broker could consider implementing a policy that requires anyone working in its office or holding an in-person open house to provide proof of vaccination. Be sure that a vaccine policy is based on exposure risk, and not based on the nature of the relationship, and that the requirement is consistently enforced. Exemptions for disability or a sincerely held religious belief would apply.

Can a seller require prospective buyers to be fully vaccinated to view the seller’s property? 

Generally speaking, a seller may set parameters on individuals who enter their property, including by requiring that individuals adhere to COVID precautions. Listing brokers should obtain their client’s requirements in writing and communicate them to cooperating brokers, for example, in the property listing showing instructions. That said, real estate professionals should advise their sellers that such requirements must take into account fair housing laws, which may require an accommodation be made to individuals who are unable to meet the COVID requirements.  For example, offering a virtual showing to accommodate buyers who cannot meet the requirements or accepting testing as an alternative to vaccination may be necessary to consider depending on the circumstances. 

Listing brokers should work with their legal counsel to disclaim any guarantee about health, safety and individuals’ vaccination status, and also utilize other showing precautions such as requiring people to wear masks, social distancing, and increasing ventilation by opening windows and doors. 

To ensure compliance with any health and safety showing requirements, buyer agents should consider requesting their clients and consumers self-certify their vaccination or health status by completing a questionnaire.  

Can a landlord require their tenants to be fully vaccinated? 

While vaccination status is not a protected class under the Fair Housing Act, other prohibited bases for discrimination in housing still apply. A person who is unable to get vaccinated due to an underlying medical condition or a sincerely held religious belief would be entitled to a reasonable accommodation, which could include testing and wearing a mask in common areas. In addition, consider whether minorities or families with children could be disparately impacted by a vaccination requirement.  

For more information on COVID-related issues that impact real estate, please visit nar.realtor/coronavirus.