This is a tough time to be a Director for a Condominium Board or in Condominium Management. Okay, to be fair, this is a tough time to be in almost any industry, but today we’ll review specifically the topic of Condominiums and proof of vaccination for use of common amenity spaces.
As of September 22, 2021 the province required the people of Ontario to provide proof of their vaccination status along with government issued ID to access certain public places and facilities (such as restaurants, gyms, etc.). And, as time goes on it appears more and more places may require proof of vaccination in an effort to increase their capacity (get back to some semblance of normal) at their establishments.
For the majority of people in Ontario, this won’t be a problem, but of course there are some that have chosen not to get the Covid-19 vaccinations. We’re not to going to pass judgement on anyone in our informative message today, but more to talk about what this could mean for Condominium Boards and Condominium Managers all over Ontario. There will be residents that choose not to be vaccinated and those that for medical reasons cannot be vaccinated.
Much like many other workplaces in Ontario, GPM Property Management Inc. has made a vaccination policy. This quickly became common practice in all industries and workplaces. Most, if not all, workplaces are asking their employees to provide proof of vaccination, and gave a deadline to do so. In some workplaces, suspensions or even terminations have been levied against employees that have not been vaccinated due to personal choice. In other cases, some level of accommodation has been made for those with valid proof of a medical conditions that prevent them from being vaccinated for Covid-19.
Now, that’s workplaces and public spaces. Condominiums are not considered public spaces, but they do have staff and common spaces used by the community. This is where things get tricky for the Boards and Managers.
The following are some hot-button topics being discussed at Condo Board Meetings all over the GTA:
– Vaccine Policy for staff (whether they are working directly for the Corporation or are contracted)
– Should the Board make a policy or rule for residents using the shared facilities (fitness rooms and pools being the key areas of concern)?
– If the Board had a rule or policy, would it be legal and enforceable? Would it be in violation of the Human Rights Code?
– How would such a rule or policy be enforced?
This pandemic is the gift, that no one wanted, that just keeps on giving! You tackle one set of hurdles (keeping the Condo clean/assisting residents during quarantine/creating evolving and unprecedented policies/etc.), and you land immediately into the next set of hurdles.
Let’s be up front here, currently, unless the legislation changes, Condominium Boards are not obligated to make or enforce a vaccination policy for residents to use the shared facilities. Since Condominiums are considered residential spaces, and the legislation is written in such a way that it excludes residential spaces from the same requirements put in place for public spaces.
At GPM, we have found that our Boards want to keep the residents of their communities safe, but they want to do so while keeping in mind that the residents have rights too. The owners pay for the common amenity spaces in their monthly common element fees (CEF), and also hold proportionate share in those spaces. This makes it complicated to make clear cut decisions, even with the good intentions of protecting people.
A Condominium can opt to make a vaccine policy or rule that requires proof of vaccination for use of the common amenity spaces by residents. It is generally encouraged that Boards utilize the assistance and expertise of their Condominium Lawyer to put this together. The language in such a policy/rule will have to be in line with the current legislation, and with careful consideration of the Human Rights Code. Also, when Boards utilize their trusted advisors (lawyers, engineers, auditors, etc.) they are typically considered to be acting in good faith on behalf of their communities. This could be important should someone bring forward a legal challenge down the road.
Key Points of Consideration before making a policy or rule. Covid-19 vaccinations are voluntary. The Human Rights Code holds the position that requiring proof of vaccination is permitted provided that there are protections in place to allow for people that are unable to be vaccinated, and that those people would be given reasonable accommodation accordingly. As mentioned before, a valid reason under the Human Rights Code might be people that have a medical condition that precludes them from being vaccinated. The Human Rights Code does not provide protections for people that simply chose not to get the vaccinations for personal ideologies or opinions.
To get the vaccine or to not to get the vaccine? Well, we have no specific answer for that question, and that remains a personal choice we all have to make for ourselves. It is important for Boards to note though, that the Ontario Human Rights Code has established that people who choose not to get the vaccinations based on their personal preferences, also forfeit their right to be accommodated under the Human Rights Code.
This means, if the Board puts a vaccine rule or policy in place for use of the common elements, and an unvaccinated (by personal choice) resident of the community expects special accommodation, the Corporation would be under no obligation to make special accommodation. Important: When in doubt or faced with a more complicated scenario, please always consider consulting legal counsel.
Section 117 (1) of the Condominium Act states: “No person shall, through an act or omission, cause a condition to exist or an activity to take place in a unit, the common elements or the assets, if any, of the corporation if the condition or the activity, as the case may be, is likely to damage the property or the assets or to cause an injury or an illness to an individual. 2015, c. 28, Sched. 1, s. 102.”
This has been an important section of the Condominium Act during the pandemic. The Board and Condominium Managers are always under an obligation to take all reasonable steps to prevent injury or an illness. All Boards and Managers have been doing this by closing shared facilities, increasing cleaning and sanitizing, providing hand sanitizer, and so much more. This would also be a section of the Act to consider when thinking about putting in place proof of vaccination policies/rules.
Some last thoughts for Boards to keep in mind:
– Proof of vaccine policies or rules should be considered temporary.
– Board should review these policies or rules regularly to make sure they remain in line with any changes to Covid-19 legislation.
– If instituting a proof of vaccination rule/policy the Board must also have a plan for how it will be upheld fairly within the community.
– Boards should have a plan for backlash or violations.