Now that most adults in Massachusetts have been vaccinated, businesses are formulating their reopening and return-to-normalcy policies. In a normal world, real estate agents spend a lot of time indoors meeting with customers and other brokers. But many vaccinated adults are only beginning to emerge from their cocoons and still feel unsafe spending time with the unvaccinated. Many customers also have children who have not been vaccinated and who are potentially at risk. For these reasons, it could be reassuring to a brokerage firm’s customers and their families, as well as to its own staff and agents, if the firm was able to say that all of its agents have been vaccinated. Such a pronouncement could potentially go hand-in-hand with dispensing with virtually all mask requirements.

But what can or should a firm do about agents who are unwilling to receive the vaccine?  Can a brokerage firm lawfully adopt a mandatory vaccination policy requiring that all of its agents get vaccinated and cut ties with those who refuse?

In answering this question, it is helpful to start by looking at the rules for employees, even though most agents are independent contractors. Guidance from the Equal Employment Opportunity Commission guidance states that requiring vaccines as a condition of employment does not run afoul of federal discrimination law as long as exceptions are made for (1) those who are unable to be vaccinated due to a disability; and (2) those who have a bona fide religious objection to the vaccine. As to the latter, Pope Francis received a vaccine and said that becoming vaccinated is a moral imperative. But there are some religions that reject all medical treatment, and there may be others that have objections to these particular vaccines.

Massachusetts state law would appear to be in accord with federal law. There does not appear to be any state law that would make it unlawful to require vaccinations as a condition of employment, assuming that these same two exceptions for disability and religious belief are honored. In some other states, there have been some lawsuits filed concerning mandatory vaccination requirements, claiming some type of legal right to remain unvaccinated on the job. But I would not expect the courts in this cerulean state to be sympathetic to any of these arguments. It might be different if we were in a different state.

The same legal principles that make mandatory vaccination policies lawful with respect to employees would largely apply to independent contractors. Existing independent contractor agreements do not include a mandatory vaccination provision, but the agreements are typically terminable on a certain number of days’ notice. So a firm would generally be within its rights to enact a new policy, for the protection of its customers and staff, stating that it intended to terminate its affiliation with agents who had not been vaccinated by a particular date, again with an exception for those acting on the basis of disability or bona fide religious belief. Once that date passed, a notice of termination with the requisite number of days’ notice could be given to those who were not vaccinated other than for reasons of disability or religious belief.

Some firms might be concerned that if they required their agents to be vaccinated, they could be held liable if the vaccinated individual sustained a rare, serious side effect. This does not seem like a meaningful liability risk for Massachusetts businesses. The vaccines have been shown to be safe, and both the state and federal governments are actively promoting their use. In the extremely unlikely event that an individual had a severely adverse outcome from a vaccine, this would not be attributable to any negligent conduct on the part of the brokerage firm that adopted a mandatory vaccination policy. If anything, under Massachusetts law, the legal exposure to a firm would appear to be greater from failing to protect customers or their family from COVID-19 exposure, for example by negligently allowing unvaccinated agents to meet indoors with customers or their children, especially if they are not taking mask precautions.

A firm that chooses to adopt a mandatory vaccination policy could lawfully require proof of vaccination. The EEOC has advised that this would not violate the Americans with Disabilities Act, and contrary to popular belief, eliciting such information from employees or contractors does not implicate HIPAA.

In short, subject to the exceptions for disability and religious beliefs, it would appear to be lawful for a Massachusetts real estate broker to require that its agents be vaccinated in order to continue their affiliation. But this does not mean that it is necessarily a good business idea for all brokerage firms to do so. There remain a number of individuals who are opposed to receiving a COVID-19 vaccine, and some of these are licensed agents. Firms contemplating a mandatory vaccination policy might want to sound out their agents to see how many have been vaccinated, how many are merely hesitant to do so, and how many are strongly opposed to receiving a vaccine. They could then weigh the potential marketing and safety and risk mitigation benefits of adopting a mandatory vaccination policy against the potential costs, in terms of loss of agents or other repercussions, that the adoption of such a policy might provoke. Firms choosing not to adopt a mandatory vaccine policy may want to consider continuation of other safety protocols, such as masking.