As the COVID-19 pandemic continues to unfold, a question that is being asked is whether condo corporations have a right to screen visitors. Particularly – whether the individual has recently travelled abroad, come into contact with someone who has tested positive for COVID-19, or is exhibiting any of the symptoms of COVID-19.
While this request for disclosure is a good-faith effort to attempt to mitigate the spread of the virus, condos and their staff should not be engaging in the screening of visitors. Condominium staff are not health care or government professionals and should not attempt to mirror those roles.
Section 117 of the Condominium Act, which prohibits the existence of a condition or the carrying on of an activity in a unit or in the common elements that is likely to damage the property or cause injury to an individual, with injury including injury to a person’s health, does not provide condominiums the authority to conduct screening, unless the corporation is made aware of a health risk.
Condo corporations should continue to rely on the guidance and directives issued by Public Health (https://www.toronto.ca/home/covid-19/media-room/covid-19-orders-directives-by-laws/) in the face of COVID-19. To date, none of these directives provide condo corporations with the authority to engage in visitor prohibition or screening, nor are visitors required to disclose this information. That said, condo corporations should post notices advising that certain visitors (i.e. those exhibiting symptoms, recently travelled abroad, or come into contact with someone who has tested positive) are not permitted to access the property, and residents should ensure that they are not welcoming visitors who ought not attend the property.
If a condo corporation is conducting screening, the corporation opens itself to possible exposure to liability, particularly if an individual with COVID-19 passes the condo screening, but nevertheless transmits the virus. Research has shown that COVID-19 presents itself differently in different individuals, leaving some completely asymptomatic. Corporations should be wary of opening themselves up to this unnecessary exposure.
So, what else can be done?
Corporations should post signage to educate residents and visitors alike, encouraging the need to practice physical distancing and imploring the importance that residents only have visitors who are essential to the property (i.e. care providers).
While corporations should refrain from conducting screening, we are advising that condominiums have a sign-in sheet to create a record of individuals who have entered the condominium. Should an issue arise at a later date concerning a visitor, the Corporation will at least know who the visitor is and which unit they were visiting. This applies regardless of whether the condominium has a concierge. Of course, there should be hand sanitizer available next to the sign-in sheet, for visitors to use before, and after, signing in.
Prior to having contractors on-site, corporations should reach out to their essential service providers and request confirmation, in writing, of the health and safety protocols that have been put into place to protect their employees.
An additional step that corporations should take is to send over a form that contains questions similar to the Ontario Public Health Self-Assessment tool (https://covid-19.ontario.ca/self-assessment/#q0), and have the service provider send back a completed questionnaire prior to the contractor attending on site. The Manager should also arrange for the contractor to sign the form in-person, indicating that the statements are true as of the date the contractor attends the corporation. This may be something that will need to be signed on a daily basis.
Corporations should ensure that essential service providers are following the necessary precautions. Part of the corporation’s inquiry prior to the service provider attending the corporation should include questions such as whether the contractor will be providing their own masks and gloves. If the service provider does not have personal protective equipment for its contractors, in appropriate circumstances, the corporation may wish to provide the contractor with same.
Contractors who are hired by owners to complete essential work in units should be treated as a visitor of the owner, and the corporation’s visitor protocol should be followed.
As has been mentioned in previous blog posts, the COVID-19 pandemic is constantly evolving. As each situation and each condo corporation is unique, when in doubt, consult legal counsel on how best to proceed.