CREA has received several questions asking for clarification on CREA’s position regarding COVID-19 vaccines and in-person showings. In response to these questions CREA has prepared some FAQs below. If there are any questions or concerns please do not hesitate to reach out to CREA’s Senior Competition Counsel, Paul Feuer, pfeuer@crea.ca or CREA Legal Counsel, Simon Parham at sparham@crea.ca.
COVID-19 Vaccine FAQs
Please note that these FAQs should be understood in the extraordinary context of the COVID-19 pandemic. REALTORS®, Boards and Associations should also ensure that they abide by any local or provincial requirements and consult their legal counsel to ensure compliance with provincial or local law.
What is CREA’s position with respect to COVID-19 Vaccines?
CREA encourages all REALTORS® to get vaccinated against COVID-19, unless there are medical or religious reasons that prevent them from doing so.
It is incumbent on REALTORS®, as professionals, to follow all public health recommendations, including getting vaccinated, in order to help bring an end to the pandemic and ensure the lives and safety of our fellow Canadians.
Recently some listings have stated that anyone visiting the property for an in-person showing must be fully vaccinated. Should a Board permit such listings to be placed on their MLS® System?
Yes.
In extraordinary circumstances, such as a global pandemic, it is reasonable for the seller to request proof of vaccination, as it is to require the use of masks, social distancing and other measures as per advice from local and provincial health authorities.
Background
Ultimately, subject to any health directive or legal requirement, CREA believes that it is important for REALTORS® to respect the wishes of sellers who are in the best position to judge their own circumstances when it comes to the health of themselves and their families. For example, a seller who is immunocompromised may decide that they do not want to risk contracting COVID-19 from unvaccinated persons who might attend an in-person showing of their home. Precluding their listings from being placed on a Board MLS® System could deprive these sellers of a valuable REALTOR® service.
Are such COVID-19 vaccination requirements a barrier to REALTOR® cooperation?
No.
In the context of the COVID-19 pandemic, CREA does not believe that COVID-19 vaccine requirements for in-person showings are a barrier to REALTOR® cooperation given that proven alternatives to in-person showings exist; in particular, virtual showings.
Background
CREA believes Boards and Associations can and should be flexible when interpreting their MLS® System Rules regarding showings and recognize that, in these extraordinary circumstances, virtual showings can be a substitute for showings conducted in person.
Conversely, should a Board require that REALTORS® only conduct in-person showings with fully vaccinated persons?
No.
In the context of the COVID-19 pandemic, CREA is of the view that, subject to any health directive or legal requirement, sellers are in the best position to judge their own circumstances when it comes to vaccines.
Further, as is explained below, vaccine requirements may expose REALTORS® and a Board/Association to the risk of a lawsuit or complaint. A strict vaccination requirement issued by the Board could therefore inadvertently expose REALTORS® and Boards and Associations to such risks.
Could REALTORS® or a Board/Association be at risk of a lawsuit or complaint if they institute a business practice that prohibits in-person showings to those who are not fully vaccinated?
Yes.
There may be privacy, human rights and competition law issues if a REALTOR® or Board/Association institutes a business practice that prohibits in-person showings from those who are not fully vaccinated unless directed to do so by provincial or federal authorities. For this reason, there is a risk of a lawsuit or complaint being made.
What can REALTORS® or a Board/Association do to mitigate the risk of a lawsuit or complaint being successful if they institute a business practice that prohibits in-person showings to individuals that are not fully vaccinated?
To mitigate such risks, Boards, Associations and REALTORS® should consider using reasonable alternatives to in-person showings, such as virtual showings, for the duration of the COVID-19 pandemic.
Background
Canada’s Privacy Commissioners have cautioned against the use of vaccine passports as a condition of receiving a service absent a public health order or law requiring the presentation of a vaccine passport to enter a premise or receive a service. Further, requiring all persons attending in-person showings to be fully vaccinated could also raise issues under provincial human rights legislation.
However, in the context of vaccines, provincial human rights commissions have stressed the importance of being flexible and encourage organizations to explore whether accommodation is possible. For example, a reasonable alternative to an in-person showing would be a virtual showing.
Accordingly, REALTORS®, Boards and Associations that institute a business practice that prohibits in-person showings to individuals that are not fully vaccinated should consider using such reasonable alternatives to in-person showings in order to reduce the risk of a privacy or human rights complaint being successful.
While offering reasonable alternatives may mitigate the risk of a lawsuit or complaint being successful, it does not stop a complaint or suit from being made in the first place. Defending such suits/complaints can take time and energy. For this reason, REALTORS® or Boards/Associations who are interested in implementing a business practice that mandates that in-person showings only be conducted with those who are fully vaccinated (or who are considering any other business practice where service is dependent on another persons’ vaccine status) should speak to legal counsel so they understand the risks involved with any proposed practice and how to properly implement it.