The issue of mandatory vaccination is a hot topic in various industries as the world works out how to live with COVID-19. O*NO Legal Founder and Legal Strategist Kristen Porter examines the topic as it relates to Australian real estate, including whether home owners can demand agents have had the jab.
I read a really interesting article in The Lawyer’s Daily recently and it got me thinking long and hard about the vaccination debate. More specifically, the COVID-19 vaccination debate.
The article covered everything from Canadian landlords trying to dictate the vaccination status of incoming tenants, to issuing eviction notices because a tenant’s guest had been vaccinated.
Leaving all of the political grandstanding aside, the article raised the very real issue of whether someone’s vaccination status can be tied to their ability to gain housing here in Australia.
There have also been numerous reports about companies, such as Qantas and Virgin, mandating or attempting to mandate that their employees get the jab.
In terms of real estate, this raises the legitimate question of whether an agency can require its agents to get the inoculation.
And what about homeowners? Can they demand the agent selling their home be vaccinated?
There’s no doubt this is a very contentious issue.
Unfortunately, I can’t tell you what the future holds other than to say the law is constantly evolving, and it is usually a couple of steps behind accepted social standards.
What I can tell you is what the law currently says on this very topic today – right now.
So, these are the five burning real estate vaccination questions on everyone’s lips and what the law currently says about them:
1. Can agencies mandate their employees be vaccinated?
My opinion: No, they can’t. Not as the law currently stands.
What the law currently says: There are significant concerns around privacy and discrimination, especially when it comes to accessing essential services.
There are vaccination exemptions, but having a mandatory vaccination policy might mean a team member has to tell you they have an exemption.
This is problematic as that team member might have a medical condition (which means they qualify for an exemption) they don’t want you, their colleagues or anyone else to know about.
This might especially be the case if their condition doesn’t affect their ability to do their job.
Any wholesale policy mandating vaccination, whether as a condition of employment or as a condition of entry or service, may be inconsistent with anti-discrimination laws.
For example, if a person can’t comply with a mandatory vaccination policy due to an issue protected under discrimination laws, such a policy disadvantages them if they are refused employment or service.
This could be grounds for a discrimination complaint.
There are also significant issues agencies need to consider when they collect and use employee information.
1A. Collection of employee information
Unless collecting an employee’s vaccination status is authorised by law, an employer should only collect that information if it is reasonably necessary for the business to function.
In the context of managing COVID-19 risks in the workplace, public health and Work Health and Safety (WHS) will guide whether the collection of an employee’s vaccination status is reasonably necessary.
An employee must also give informed consent for their vaccination status to be collected.
This means an employer must tell the employee how that information will be used, and the employee needs to give their consent freely, without pressure or coercion.
An employee’s vaccination status should only be disclosed where there is a genuine need for someone to know that information.
1B. When an employee’s personal information is not covered by the Privacy Act
The general rule is that employee records, which include health records, are not covered by the Privacy Act.
This exemption only applies to employee records after the employer has collected the information and they must do this in a lawful way.
Where this can differ is when an employer uses another service entity, or sub-contractor, to hire the employee.
In this instance, the employee records exemption does not apply and any information must be treated in line with the Australian Privacy Principles (APPs).
1C. Can principals disclose the vaccination status of their staff to their clients?
Technically yes, as employee records are exempt from the Privacy Act, and this includes health records, but only as they relate to the employment relationship (provided they are employed directly by the agency, and not through a service entity like bigger groups tend to do).
However, I would never want to disclose my employees’ health information without their consent. I always treat my team with the respect they deserve and would not like it if someone disclosed my health information without my approval.
2. Can an agency make it a condition of entry that a client must be vaccinated to come in their office or to sell their home/rent their home?
My opinion: It’s very unlikely.
What the law currently says: Often, businesses can make rules and refuse service to people, but you still need to be careful not to discriminate, as we’ve already covered.
Safe Work Australia currently advises that WHS laws do not require service providers to ask their clients or customers for proof of vaccination.
In the absence of any public health orders requiring proof of vaccination as a condition of entry or service, it is unlikely that real estate agencies could require this from clients.
3. Can a homeowner, landlord or tenant make it a condition of entry to their home that an agent be vaccinated?
My opinion: Not technically.
A homeowner or landlord can select any agent or property manager they choose, and they don’t need to give a reason for their choice.
If an owner wanted to terminate a current exclusive listing agreement or a managing agency agreement, then the usual contract laws would apply.
An agent or property manager not being vaccinated would not be a valid reason to terminate the contract.
This issue is slightly different for tenants and each case would need to be assessed considering the tenant’s vulnerability and what would be required to protect their health.
What the law currently says: Currently, there are health orders in several states prohibiting real estate professionals from entering a property, and only a few exemptions apply.
But in the absence of a health order, it is unlikely that tenants or other real estate clients could require proof of vaccination as a condition of entry to the home or premises.
4. Can a homeowner, landlord or tenant make it a condition of entry that those inspecting their home to buy it or provide real estate services (such as photography, home styling or floor plans) be vaccinated?
My opinion: No.
What the law currently says: The same situation applies here as it does for requiring an agent to be vaccinated.
In the absence of any health orders, it is unlikely that a real estate client could require evidence of vaccination as a condition of entry to the property.
5. Can landlords make it a condition of the lease that a tenant be vaccinated?
My opinion: No.
In this instance, we need to examine ‘why’ a landlord would do this and what legitimate purpose an owner would restrict access to their property for.
A tenant not being vaccinated will not damage their property.
Tenancy regulations are regularly updated and the laws in many states now allow pets, with owners unable to refuse consent without going to the tribunal.
It’s a fair assumption that a pet may damage a property more than an unvaccinated tenant.
What the law currently says: Residential tenancy protections apply, and discrimination in the provision of property and accommodation services is unlawful under various state and federal legislation.
Boring legal stuff: This article is general information only and cannot be regarded as legal, financial or accounting advice as it does not take into account your personal circumstances. For tailored advice, please contact your lawyer or if you do not have one, feel free to contact O*NO Legal.
