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Louisiana REALTORS • Nov 22, 2021

The Status of COVID-19 Vaccine Mandates in the Workplace

Written By: B. Troy Villa, with contributions from Jerry “Jay” Stovall, E. Frederic Preis, Jr., Rachael Jeanfreau and Phillip Giorlando

Even prior to the Food and Drug Administration (FDA)’s full approval of the leading COVID-19 vaccines began this past August, the debate has raged as to whether employers could/should/must adopt a vaccine policy in the workplace and how businesses and their customers would interact with in-person commerce returning in the economy. There has been no shortage of opinions from all sides.


To state the obvious, the residential real estate industry is not immune from the debate, nor the effect of governmental mandates, private company policies, and the personal beliefs of its customers. We all are susceptible to information overload and misinformation, which makes sound business decision-making much more difficult. With a little help my friends (aka my law partners), the goal of this article is to provide some context and direction to brokers, agents and customers as they navigate through the unchartered waters of a vaccine-enabled world. 


A caution to the reader: the answers provided below are meant to be brief and instructive, not necessarily definitive or completely thorough, for two reasons: (1) quite obviously, there has not been much of a chance for existing laws to be applied by the courts to the current pandemic, so much of our interpretations are not able to factor in how a judge or jury would apply them; and (2) if we have learned anything since the COVID-19 pandemic began, it’s that there are going to be shifts, adjustments, and changes. Hopefully one day, there will be clarity. But not yet. So, away we go!


  • Are all employers, regardless of the number of employees, required to mandate vaccines of their employees?

    Besides Federal employees and contractors, and employees of health care provides that receive federal reimbursements, only private employers that employ 100 or more employees are required to adopt a mandatory vaccine policy, maybe.


    As reported by my law partner, Jerry “Jay” Stovall, in an update published on November 4, 2021 , the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard for COVID-19  in furtherance of an Executive Order from President Biden providing that “covered employees” (most public and private employers with 100 or more employees) must develop, implement and enforce a mandatory COVID-19 vaccination policy or adopt a policy requiring employees to either (1) choose to either be vaccinated or (2) undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.  


    Jay’s article further explains the employer’s policy must require vaccination of all employees, including all new employees, as soon as practicable other than those employees (1) from who a vaccine is medically contraindicated, (2) for whom medical necessity requires a delay in vaccination or (3) those legally entitled to a reasonable accommodation under federal civil rights laws because they have a disability or sincerely-held religious beliefs, practices or observances that conflict with the vaccination (more on this last exception below).  Through several rushed and confusing updates, the timeline for compliance with the OSHA vaccine mandate has been pushed back several times and is now set for compliance not later than January 18, 2022.


    However, a funny thing happened on the way to the company infirmary for your mandatory vaccine. 


    On Friday, November 12th, the U.S. Fifth Circuit Court of Appeals out of New Orleans issued a nationwide injunction, staying OSHA’s vaccine mandate, which means OSHA cannot move forward with its vaccine mandate unless it can prove to the Court that its Emergency Temporary Standard is necessary to protect employees from “grave danger” due to exposure of “substances or agents determined to be toxic or physically harmful.” This leaves large employers, who would otherwise be required to satisfy the mandate, developing whiplash from watching all the medical, legal and political back-and-forth. In the meantime, my partners suggest it is advisable for employers that are covered by OSHA’s mandate to proceed with developing their vaccine policies under the assumption the injunction may be lifted.  Otherwise, stay tuned.  


  • Can an employer voluntarily adopt a vaccine mandate?

    While OSHA’s vaccine mandate for large employers remains on the judicial ping-pong table, there seems to be a consensus that employers are not prohibited from adopting a vaccine mandate in the workplace, regardless of the size of their business or staff, but with exceptions.  As Jay Stovall wrote in an article published on August 27, 2021, Federal law does not prevent an employer from requiring all employees entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act, Americans with Disabilities Act (ADA) and other Equal Employment Opportunity considerations.  The few judicial interpretations of a voluntarily-adopted vaccine mandate all seem to be consistent in this regard. 


    As Jay further explains in his article, the ADA requires an employer to provide reasonable accommodations to employees who object to being vaccinated due to an existing disability, unless providing that accommodation poses an undue hardship on the business’ operations or poses a direct threat to the employee or others. If the vaccine mandate tends to screen out workers with a disability, the employer must show that unvaccinated employees pose a “direct threat” in order to take action against the employee.  If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.


    Whether an employee may claim a “sincerely-held religious belief” under Title VII as the basis for not complying with a vaccine mandate in the workplace is, well, not a simple answer as you probably suspect. Both Jay Stovall and my other partners, Fred Preis, Jr., Rachael Jeanfreau, and Phillip Giorlando have written extensively on this topic , and I would encourage you to read their materials for a detailed analysis. 


    In short, the definition of “religion” is broad and protects the beliefs and practices beyond the more commonly-recognized religions.  As my partners suggest, employers should generally assume that an employee’s religious objection is based on a sincerely held religious belief and should only challenge the employee’s belief if the employer has an objective basis for questioning the employee’s objection. 


    As my law partners also caution, employers must also be conscious to not adopt a vaccination mandate in a way that has a disparate impact on employees because of their disability, race, religion, color sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason for doing so.


  • Would a vaccine mandate, whether voluntarily or compulsively adopted, apply equally to both employees and independent contractors?

    This question has yet to be specifically answered by governmental policies or by the courts. We believe business owners should expect that independent contractors will be considered on the same level as employees for purposes of any vaccine mandate. While there are distinct legal differences between employees and independent contractors, those differences do not apply in the areas of health and safety of a workforce, so it is best to assume they will be treated equally for vaccine mandates.

  • Could a seller instruct their agent to not allow un-vaccinated potential buyers from showing of a listed property?

    The answer to this question has both a legal aspect and a practical one. With respect to the unchartered “legal” waters, the Fair Housing Act (Title VIII of the Civil Rights Act of 1968) prohibits housing discrimination by real estate firms and homeowners.  Homeowners may not refuse to sell or lease property based on race, religion, color, gender, or national origin, and in some jurisdictions, sexual orientation.  Similar to the voluntary vaccine mandate in the workplace, there does not seem to be a specific prohibition based on vaccine status


    However, the concern is that a real estate firm honoring a listing homeowner’s request might be viewed as having an unintended impact on one or more of the protected classifications under the FHA.  In a litigious environment, there are legal practicalities that real estate professionals should consider and may be better served by providing more information to potential listing clients.


    Besides the legal risks, there are also practical considerations.  For instance, it will be likely very challenging for any listing agent to “police” the vaccine status of potential buyers and their agents.  If a listing client insists on using a “no vaccine, no entry” policy, real estate professionals should consider a written acknowledgment that the client understands there can be no guarantee that only vaccinated persons will enter the property.  


Conclusion

The ink has yet to dry on the “fine print” related to the world’s response to COVID-19, including vaccine mandates, government policies and business best practices. In some regards, the ink has yet to touch the page. Drawing final legal conclusions regarding any of it is nearly impossible. All business owners should stay vigilant as these policies and the law develop. Until then, common sense and careful consideration should be used to guide your business practices in relation to COVID-19 and vaccines. 

By Louisiana REALTORS® 29 Apr, 2024
Bill Tracking Report as of 4/26/2024
By Louisiana REALTORS® 26 Apr, 2024
From REALTOR® Magazine by Stacey Moncrieff Don’t talk about business as usual to this group: NAR’s culture transformation commissioners and new leadership are helping to usher in big changes for the nation’s largest real estate organization. When the National Association of REALTORS® named its Culture Transformation Commission—a group of more than 70 members; state and local association staff; and NAR staff selected through a collaborative process—the aim was to identify and break down impediments to being an inclusive, welcoming and respectful organization for all. NAR’s Leadership Team announced the Commission in October 2023 as an essential step in putting the organization on a new path forward. NAR continued down that path the following month with the appointment of Interim CEO Nykia Wright and again in December with the appointment of Chief Marketing & Communications Officer Suzanne Bouhia. In February, Wright engaged Karyn Detje to lead NAR’s human resources transformation. Along with the staff changes have come shifts in NAR leadership. Kevin Sears, a broker from Springfield, Mass., stepped into the presidency in January, making a commitment to help return the organization to stable ground, get back to the business of helping members succeed, and eliminate distractions from the job. Shortly after taking office, Sears announced that two former NAR presidents, Vince Malta and Sharon Millett, would fill vacancies in the 2024 NAR Leadership Team. Malta is a broker from San Francisco and was NAR’s 2020 president. Millett, a broker from Auburn, Maine, was NAR’s 1999 president. “The real story [of NAR] is progress,” Wright said in a letter to members in February, calling out the CTC’s role. The group’s recommendations, she said, will shape the association’s progress into the future. “We’ve reached out directly, and the overwhelming majority of our members have told us they trust in what we are doing to transform the organization,” Wright says. “We are not taking their trust lightly but are working every day to earn their continued confidence.” Under the new staff and member leadership, NAR is communicating more deliberately, sharpening its focus on the core mission of serving its members, and moving toward becoming a nimble organization. Four Areas of Focus Part of that comes with the delivery of the CTC’s recommendations, some of which are expected in the fall, according to Ryan Davis, NAR’s vice president of diversity, equity and inclusion. “This is a ripe opportunity for change,” says Davis, who serves as co-lead on the project. “While some of the work will likely spill over into 2025, we expect to see formal recommendations in November [at NAR NXT(link is external), Nov. 8–10, Boston].” Under the leadership of its tri-chairs, the CTC has completed two of four phases of its work—information and data gathering and aligning on priorities. In the information-gathering phase, commissioners heard from thousands of association members and staff via interviews, focus groups, open forums and informal conversations. In the second phase, they aligned the findings into four common themes and identified opportunities for culture transformation within each theme. Theme 1: Mission and Values Opportunities: Clearly define our real estate–driven mission; appreciate and understand the work that NAR staffers, members, and state and local association staff perform; set expectations around how members and staff treat one another; and embed change throughout NAR. Theme 2: Leadership Opportunities: Set clear expectations and standards for those who lead across NAR—members, state and local association staff, and NAR staff. Review the entire leadership process—from the selection, training and evaluation of senior staff to the election, appointment and training and expectations of member leaders. Theme 3: Governance Opportunities: Rethink the association’s governance structure, its focus, and how it operates to enable members and staff to do their best work. Theme 4: Compliance Opportunities: Provide a safe space for all and promote accountability. To guide the next two phases of the work—developing implementation plans and final review, adoption and implementation—the group recently engaged McKinley Advisors, a firm with deep roots and expertise in association management and transformation. Working in parallel with the CTC, a Policies and Procedures Task Force is creating recommendations to improve NAR’s policies, procedures, trainings and systems to prevent inappropriate member behavior, encourage reporting of alleged misconduct, and promote an environment of transparency and accountability. “Culture change takes time,” says Detje, who has led staff transformations within large organizations and is co-leading the project with Davis, “but I see an incredible commitment among the members and staff to make it happen. One thing I’ve found really remarkable is that, despite having been through an incredibly challenging 18 months, people are passionate about this organization and the work they do.” The commission continues to welcome feedback from members and association staff. Want to share your ideas on transforming the culture of NAR and the REALTOR® organization? Email culture@nar.realtor .
By Louisiana REALTORS® 23 Apr, 2024
Last week, NAR President Kevin Sears checked in from the NAR Broker Summit, where he learned new tools to strengthen his business alongside several hundred fellow brokers. Next stop, Washington, DC for the REALTORS® Legislative Meetings, where we’ll show Congress our grassroots strength in action. We encourage you to watch Kevin’s video here to learn more about what NAR is advocating for this year at RLM. As always, the overarching theme is increasing access to homeownership. This video is also in the video section of our website. Stay tuned for Kevin’s next update.
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