Sleeves Up?

Louisiana REALTORS • November 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. 

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Louisiana Candidates Qualify for November 3 Election

By Louisiana REALTORS® • August 5, 2026
 Candidate qualifying for Louisiana’s November 3 election began Wednesday, August 5, and concludes Friday, August 7. The three-day qualifying period will establish the candidates for all six U.S. House districts, as well as judicial, parish and municipal races across the state. This election cycle includes several changes to Louisiana’s congressional races and election calendar. The state’s U.S. House primaries, originally scheduled for May 16, were canceled following the U.S. Supreme Court’s decision in Louisiana v. Callais. The Louisiana Legislature subsequently adopted a new congressional map that reduced the number of Black-majority congressional districts from two to one. Under the revised election calendar, the November 3 U.S. House contests will use an open primary system. All qualified candidates will appear on the November ballot, regardless of party affiliation. A candidate receiving more than 50% of the vote will be elected. If no candidate receives a majority, the two candidates receiving the most votes will advance to a December 12 runoff. U.S. Senate The November general election will feature Republican nominee U.S. Rep. Julia Letlow and Democratic nominee Jamie Davis. Letlow's Senate campaign has also created an open seat in Louisiana's 5th Congressional District. 5th Congressional District Several candidates have announced campaigns for the 5th Congressional District seat: State Sen. Stewart Cathey State Rep. Michael Echols Louisiana Board of Regents Chair Misti Cordell State Rep. Gabe Firment Cathey, Echols and Firment currently serve in the Louisiana Legislature. Additional candidates may qualify before the deadline on Friday. The 5th District covers portions of northeastern and central Louisiana and extends into the Florida Parishes. 6th Congressional District Congressman Cleo Fields has announced that he will not seek reelection in the newly redrawn 6th Congressional District. Instead, Fields is running in a special election for his former state Senate seat, which became vacant following the death of Sen. Larry Selders of Baton Rouge. The newly drawn 6th Congressional District extends around the Baton Rouge area and includes portions of rural communities surrounding the capital region. State Sen. Rick Edmonds has announced his candidacy. State Sen. Blake Miguez has also been discussed as a potential candidate, although the candidate field will not be finalized until qualifying closes Friday. Federal law requires congressional candidates to reside in the state they seek to represent but does not require them to reside within the specific congressional district. 2nd Congressional District Congressman Troy Carter currently represents the 2nd Congressional District, which extends from the Baton Rouge area toward New Orleans. Under the newly adopted congressional map, the 2nd District remains Louisiana's sole Black-majority congressional district. East Baton Rouge Parish Judiciary All 15 judgeships on the 19th Judicial District Court are scheduled for election following the Legislature's creation of two new judicial election subdistricts. Each subdistrict will elect seven judges, with an additional judgeship elected parishwide. Litigation challenging the new judicial map remains pending. Judicial races are among the contests being monitored by Louisiana REALTORS® and local Political Action Teams. Judicial decisions can have implications for property rights, business activity, litigation and the overall legal environment in Louisiana. Local Elections Voters across Louisiana will also consider candidates for mayors, city and parish councils, school boards, police chiefs and other local offices. While these races typically receive less statewide attention than congressional and statewide contests, local elected officials make decisions affecting land use, zoning, permitting, infrastructure, taxation and housing policy. These issues can directly affect real estate activity and development within local communities. Candidate Lists and Election Information The candidate field will not be final until qualifying closes Friday, August 7. The official list of qualified candidates is available through the Louisiana Secretary of State's Candidate Inquiry portal. The complete election schedule, including key dates for voting, registration and absentee ballots, is available through the Secretary of State's election calendar. For Louisiana REALTORS®, the qualifying period provides an early look at the candidates who will appear on the November ballot and the races that may affect real estate, property rights, development and local communities across the state.
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