Condominiums under the Condominium Act (the Act) are deemed to be the occupiers of their common elements for liability purposes, and as the occupiers of their common elements, have a duty of care under the Occupiers’ Liability Act, (the OLA) to ensure the reasonable safety of indoor common element amenity users.
Condos also have an obligation under the Occupational Health and Safety Act, (the OHSA) to take every precaution reasonable in the circumstances to protect the safety of their on-site employees and contractors. Consequently, under the OHSA and the OLA, condos are required to take reasonable measures to limit the spread of COVID-19 as they have an obligation to protect amenity users and on-site employees from potential exposure.
In an effort to comply with their obligations under the OHSA and OLA, an increasing number of condos within the last two months have implemented mandatory vaccination policies, which apply to indoor common element amenity users and on-site employees.
Although these policies are largely supported by public policy in Ontario, concerns have been raised with respect to the authority of condos to unilaterally implement such policies, as well as the legal protections available to amenity users and employees.
Workplace vaccination policies
Toronto’s chief medical officer of health has strongly recommended that employers in Toronto institute workplace vaccination policies, in addition to other measures, to protect their employees and the public from COVID-19.
The foregoing recommendation would apply to condos in Toronto; however, a workplace vaccination policy implemented by a condo, including a condo situated in Toronto, would still have to be reasonable and comply with existing legislation.
If a condo’s workplace is unionized (i.e., the employment of the condominium’s cleaners, superintendent or security staff is governed by a collective agreement), the condo would be prohibited from unilaterally implementing a vaccination policy.
If a condominium’s workplace is not unionized, the condo would be permitted to unilaterally implement a vaccination policy and require that all employees comply.
In the latter scenario, barring discrimination under the Human Rights Code, (the code), if an employee is unwilling to comply with a condo’s vaccination policy, the condo would be permitted to terminate the employee’s employment on a without cause basis. In doing so, the condo would have to provide the employee with pay in lieu of reasonable notice of termination, in addition to any other pay and/or benefits that employee may be entitled to upon the termination of their employment, under statute, contract and/or common law.
As the presence of unionized workplaces in condos is becoming more prevalent, any condos considering a workplace vaccination policy should first consult with their solicitor.
Exemptions under the code
The Ontario Human Rights Commission (the OHRC) released a policy statement on September 22, 2021, advising that implementing vaccination policies to protect people at work or when receiving services is permissible under the code. However, protections must be put in place to make sure people who are unable to be vaccinated for code-related reasons are reasonably accommodated.
In this regard, it is possible that an amenity user or employee may claim that they are exempt from a vaccination policy under the code on the basis that: (a) they have a religious objection that prohibits them from getting vaccinated against COVID-19; (b) they have a medical exemption that prohibits them from being fully vaccinated against COVID-19; and/or (c) they are unable to receive the COVID-19 vaccine for disability-related reasons that are unrelated to a medical exemption.
Creed and religion
The code prohibits discrimination based on creed, which can include religious beliefs and non-religious belief systems that resemble religion. In the September 22, 2021 policy statement issued by the OHRC, the OHRC advised that “personal preferences or singular beliefs do not amount to a creed for the purposes of the code”.
Accordingly, if an amenity user or employee chooses not to be vaccinated because of a personal preference, this would not amount to a creed for the purposes of the code. As such, said amenity user or employee would not be entitled to accommodation under the code on this ground alone.
In order to support an exemption based on a creed under the code, the amenity user or employee would have to provide objective evidence that their claimed creed has a connection to an organization or community that professes a shared system of belief, which prohibits them from getting vaccinated against COVID-19.
Medical exemptions and disability
The College of Physicians and Surgeons of Ontario (the CPSO) stated that the very few and rare medical conditions that would medically prohibit someone from getting vaccinated against COVID-19 include: (i) a severe allergy or anaphylactic reaction to a previous dose of a COVID-19 vaccine or to any of its components, which has been confirmed by an allergist or immunologist; and (ii) a diagnosis of myocarditis ((inflammation of the heart muscle) or pericarditis (inflammation of the sac around the heart) after receiving an mRNA vaccine.
The OHRC encourages condos that voluntarily implement vaccination policies to require that anyone alleging they are medically exempt from being fully vaccinated must provide a written document, supplied by a physician or by a registered nurse extended class or nurse practitioner. The document must state they are exempt for a medical reason and how long the exemption applies.
Other disability-related needs
It is also possible that an amenity user or employee could claim they are unable to receive the vaccine as a result of a disability-related need that they suffer from, which is unrelated to a medical exemption. To date, the OHRC has provided no guidance with respect to this possible category of exemption; however, it is presumed that this potential category could apply if an amenity user or employee suffered from a mental health condition that made it difficult or barred them from getting vaccinated.
Privacy rights
Accessing an individual’s confidential medical information, which includes an individual’s vaccination status and COVID-19 test results, is only permitted by consent, pursuant to legislation or contract, or to the extent that such information is demonstrably required and permitted by law for a particular purpose.
At the date of this article, condominiums are only permitted to collect medical information regarding: an amenity user’s vaccination status and/or COVID-19 test results if the amenity user consents to the collection; and an employee’s vaccination status and/or COVID-19 test results if the employee consents to the collection or if the collection is permitted pursuant to the employment contract between the condo and the employee.
Although the federal Personal Information Protection and Electronic Documents Act (PIPEDA) and provincial Personal Health Information Protection Act (PHIPA) do not strictly apply to condos in Ontario, the principles set out in the foregoing should be used to help create a privacy policy. Such a policy should be implemented or updated in conjunction with a vaccination policy.
The recommended privacy policy should advise amenity users and employees of the following, at a minimum: (a) the nature and extent of the information being collected; (b) the purposes for which such collection is being conducted; (c) where the information will be stored; (d) who it will be shared with; and (e) when and how it will be destroyed.
Seek professional assistance
The law and recommendations detailed above are general in nature and are subject to change as the law on this particular matter develops. Accordingly, a condo considering implementing a vaccination policy should first consult with their solicitor, who can assist with the requested policy, in addition to keeping the condo apprised of any applicable changes.
If a condo is considering implementing a vaccination policy, it is advised that it be in conjunction with a privacy policy and a human rights policy to reduce the condominium’s exposure to potential liability under the code. This ensures that accommodation requests are handled in a timely and consistent manner, while protecting the privacy rights of amenity users and employees.
Ashley Winberg is a corporate lawyer specializing in condominium law at Elia Associates. She assists a diverse array of condominium boards and management companies throughout Ontario on all matters relating to condominium governance and management. She is also the chair of CCI Huronia’s Communication Committee, a director on CCI Huronia’s Board of Directors, and a member of CCI Toronto’s Volunteer Committee and CCI Toronto’s By-Law SubCommittee.
