Through the various stages of the COVID-19 pandemic, condo boards and managers have been working tirelessly to ensure the health and safety of their residents and service providers.
We’re now at a point in the pandemic where vaccinations are widely available in Canada and the vast majority (over 70%) of Ontarians are fully vaccinated. However, the dangers associated with COVID-19 persist as we enter the fourth wave of the pandemic fueled by the Delta variant.
There have been increasing calls on the provincial government to provide guidance on mandatory vaccination policies—including from Mayor Tory. Many are anxiously awaiting this guidance, hoping the province steps up to the plate. Currently, businesses, institutions, and condo corporations have to fend for themselves, resulting in hesitancy, inconsistency, confusion, and obstacles to enforcement.
Condos are grappling with the question: how can we keep our residents and service providers as safe as possible AND open up the amenities?
Over the last few weeks, there has been a rise in mandatory vaccination policies. Many Ontario universities announced that they will require all those who attend their campus to be fully immunized (or have an exemption under the Human Rights Code or obtain a negative COVID-19 test shortly before going on campus).
Today, the federal government announced that all federal employees must be vaccinated against COVID-19. The Minister of Transport declared that all commercial plane passengers will be required to be vaccinated.
This is a rapidly evolving situation and is one that has been met with resistance from some Ontarians. However, just because the issue may be contentious to some does not mean that condo corporations shouldn’t consider it.
Can Condos Implement Mandatory Vaccination Polices for the Amenities?
A resident’s right to use the gym, party room, lounge, or any other amenity is not absolute; they are not permitted to use the amenity if doing so would risk the health and safety of others on the property. As a shared communal space, the risk of COVID-19 transmission is present in the amenities. This is where a vaccination policy can come into play.
Let’s recap some of the condo corporation’s authority and obligations:
- ensure the property is reasonably safe;
- manage the common elements;
- prevent dangerous conditions on the property;
- maintain a safe and healthy workplace and take all necessary precautions for the protection of the workers (including those tasked with cleaning the amenities).
These are found in the Condominium Act, the Occupational Health and Safety, Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, and the Occupiers Liability Act.
The guidance from public health authorities and the scientific community is clear: vaccinations reduce the likelihood of getting COVID-19 and are incredibly effective at protecting from severe illness and hospitalization from COVID-19.
As such, requiring those who use the amenities (particularly amenities that pose a high risk of COVID-19 transmission) to be fully vaccinated would help ensure the health and safety of residents and service providers on the property and help prevent COVID-19 outbreaks.
Privacy and Human Rights Issues
Two primary concerns with mandatory vaccinations are privacy and human rights.
Any mandatory vaccination policy would be required to make exceptions under the Human Rights Code for people who are unable to get the vaccine due to religious or medical grounds, or other relevant code-protected ground. Where these exceptions apply, condo corporations will need to accommodate these individuals to the point of undue hardship.
Although mandating medical treatment and requiring the disclosure of a person’s immunization status may infringe on that person’s privacy rights, these rights may be limited when there are health and safety issues at play.
To ensure enforceability, the vaccination requirement should be logically connected to the likelihood of COVID-19 transmission in the absence of vaccination in the amenity.
The following factors/questions should be considered:
- Is the risk of transmission of COVID-19 reduced by only permitting vaccinated residents to use the amenity?
- Is there a sufficient risk of spreading COVID-19 in the amenity?
- Are there protective measures (such as PPE) sufficient to ensure health and safety in this amenity?
- Is the vaccine widely recommended/available?
The decision about implementing a mandatory vaccination policy may depend on the type of amenity (for example, is it is an outdoor terrace or an indoor gym?).
While the courts have yet to weigh in on the enforceability of mandatory COVID-19 vaccination, the various sectors (including the federal government) starting to implement mandatory vaccination policies provides some guidance.
We encourage condo corporations to take all reasonable steps to help curb the spread of COVID-19 and consider consulting with your condo lawyer about whether to implement a mandatory vaccination policy for the amenities.