BARRISTER'S BRIEFING: The End of the State of Emergency: So Now What?

Brian Levine | June 28, 2021

Brian Levine, Esq.

The New York State of Emergency effectively ended on June 24, 2021. With its ending, many of the regulations enacted by the governor ended as well. We’ve been waiting for this emergency to end for over a year. So now with the ending of the emergency and a transition back to what is “normal,” Realtors should be asking themselves, “So now what?” What do we do regarding open houses, mask wearing, social distancing, vaccinations and COVID-19 forms? This week’s article is a cheat-sheet of sorts of best practices and reminders.

Cold Calling

The cold calling ban is over. You can, once again, cold call, so long as the recipient is not on the Do Not Call Registry. Make sure you check.

Mask Requirements

Federal CDC guidance will still remain in effect in New York. This means that unvaccinated individuals will still be required to wear masks. Masks will still be required on all public transportation, as well as in certain settings such as pre-K through grade 12, large-scale indoor events, nursing homes, health care facilities, homeless shelters, etc. Masks may also be required by individual brokerage offices in order to enter, as well as homeowners may require the use of masks regardless of vaccination status.

Refusal to Wear a Mask

If an individual refuses to wear a mask, the Realtor should not go forward with allowing the person access to the property. It is expected that all persons comply with the guidelines to keep others safe from possible exposure. All Realtors are obligated under the Real Property Law to act in an honest and trustworthy manner. To allow a person access to a property without a mask, when a mask is required, would be a violation of the law and could subject the Realtor to potential loss of licensure. It may also be deemed a violation of the Code of Ethics (Article 1 and 3).

COVID-19 Forms

These forms were never mandatory, but they were effectively used during the pandemic to screen parties. Use of these forms are still at the discretion of the homeowner and a discussion should be held early on in a Realtor’s representation of a homeowner as to whether the homeowner wishes to continue to utilize them. If a homeowner requires the execution of any COVID-19 form in order to gain access to a property, that request must be complied with.

Vaccines

For people who are fully vaccinated (two weeks post completion of full vaccine regime) masks and social distancing are no longer required. For those that are not fully vaccinated (for example, the person received only one of two shots; two weeks have not passed since the last shot; children are not yet eligible for a vaccine and those who choose not to get vaccinated), they are still required to wear masks, maintain social distancing and continue to hand wash and disinfect high-touch surfaces.

Businesses and Homeowner: Can still require masks on their premises regardless of vaccination status. However, they cannot prevent those that are not fully vaccinated from entering the premises; they can only require the use of masks/disinfectant if a party is not fully vaccinated.

Proof of Vaccination: Vaccination proof can be provided in two different ways: (1) physical proof in the form of a vaccine card, Excelsior Pass, digital application, etc.; or (2) self-reporting/the honor system.

Open Houses/Showings

Open houses and showing may now resume as they were in the past. A listing agent should discuss showings with the seller/landlord and decide on what proof of vaccination they are comfortable with. For people not wearing masks, the Realtor can ask for proof of vaccination prior to entering the property. This would mean that the listing agent would need to be at the door or have someone at the door verifying vaccination status. If a homeowner is comfortable, the listing agent could require cooperating brokers to verify that all parties are fully vaccinated (including the agent). If asked, cooperating agents would be required to confirm the status of themselves and their clients (Code of Ethics Art. 1 and NYRPL requires agents to be honest and truthful and treat all parties fairly). For all individuals not providing proof of vaccination, masks must be worn and high touch surfaces or surfaces that were touched must be cleaned and disinfected. If the homeowner refuses to require proof of vaccination in an acceptable form, all parties must wear masks and maintain six feet of social distancing. NOTE: Those that refuse to provide proof of vaccination upon request should be treated as unvaccinated (mask/social distancing required).

Conclusion

While the State of Emergency has been lifted, there are some regulations that are still in place which are designed to continue to keep us all safe. Continue to abide by them and act in a safe manner in the interests of safety. Respect other’s rights and they will respect yours.

Brian Levine
Brian S. Levine, Esq. is In-House Counsel/Director of Legal Services & Professional Standards Administrator for the Hudson Gateway Association of Realtors.