Condo Considerations for New Proof of Vaccine Mandates in Ontario

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On September 22, 2021, certain businesses and organizations in Ontario are required to ask patrons for proof of vaccinations and identification before allowing them to enter the premises. There are exemptions, such as those for children and certain medical conditions, but generally speaking all adults are expected to show proof of vaccination to access the listed premises. Some condominiums have the types of premises listed in the regulation, including indoor fitness areas and indoor meeting and event spaces. Does this mean condominiums must ask owners for proof of vaccination and identification?

It is not clear. Most lawyers seem to interpret this regulation as not applying to condominiums because of the use of the word “patron” and there being no clear language indicating an intention for it to apply in condominiums like there is with the regulations about masks and other requirements. Our friends at DHA went one step further and reached out to the Ministry of Health for clarification and were told the regulations requiring proof of vaccinations and identification do not likely apply to condominiums. You can read their full post here: https://dhacondolaw.ca/condo-law-news/ministry-update-what-the-proof-of-vaccination-requirement-means-for-condominiums/

What does this mean for condominiums?

It appears that condominiums are not required to ask their residents and others for proof of vaccination and identification to use indoor gyms, pools, and meeting spaces. (Note: the condominiums still must comply with other requirements about masks, distancing, contact tracing, and limits on the number of people using the area).

Some condominiums may choose to keep these areas closed for a variety of reasons, including concerns about the spread of the virus and associated liabilities and the costs or inconvenience of the additional regulatory requirements to open the facilities. Others may decide to open the facilities to all residents who wish to use them, following all regulatory requirements and sometimes having owners sign a release or waiver of liability.

Other condominiums may choose to pass rules creating vaccination policies for the residents to use certain amenities. Some may require proof of vaccination while others may offer alternatives, such as testing or proof of immunity through prior infection. These rules should be reasonable based upon the risks identified. For example, a vaccination policy for a small, indoor gym is more likely to be reasonable than a policy requiring owners using an outdoor greenspace to show proof of vaccination. The policy should not require owners to show proof of vaccination to access their own homes, so there should be exemptions for ingress and egress on the common elements even if those areas may be shared with others. Furthermore, the policy should consider medical exemptions and other accommodations that may be necessary according to the Human Rights Code to balance the person’s individual rights with those of others in the community. Lastly, the condominium will need to carefully consider privacy issues surrounding the collection and disclosure of any information received about vaccinations, exemptions, or identification.

This is a new and constantly developing area of law. If you have any questions or concerns, reach out to your lawyer for further advice and direction.

Another “3 Ps” in Condos? Policies, Programs, and Plans

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Most people are familiar with the declaration, by-laws, and rules of condominiums, but many are less familiar with policies in condominiums. This is not surprising as the only references to “policies” in the Condominium Act, 1998 (the “Condo Act”), are for insurance policies. In recent years, condominiums are more regularly creating policies to address a variety of topics. This post is the first of two which will describe some policies that condominiums may be required to create and others that may be recommended.

WHAT IS A POLICY?

Generally, a policy is a set of guidelines that support future decisions and define expectations. For condominiums, a policy may be created, amended, or repealed by resolution of the board of directors. It does not require approval of the owners. That said, the policy will only be enforceable if the board of directors had authority to make a decision on the subject-matter of the policy without approval of the owners. The policy must also be reasonable and consistent with the declaration, by-laws, and rules of the condominium.  

REQUIRED POLICIES, PROGRAMS AND PLANS

Condominiums may be required to create policies in a variety of situations. The most common situation is where a condominium has an employee (or more broadly a “worker” in some cases).

Reserve Fund Investments

The Condo Act requires condominiums to create an investment plan before investing any part of the condominium’s reserve fund accounts. The plan must be based on the anticipated cash requirements of the reserve fund as described in the most recent reserve fund study. It is wise to create the plan with the help of an investment professional.

Workplace Violence and Harassment Policies and Programs

Every employer in Ontario must prepare and review, at least annually, policies on workplace violence and harassment according to the Occupational Health and Safety Act (“OHSA”). The policies are required regardless of the size of the workplace or the number of workers, but there are additional requirements where there are six or more regular workers. The employer must also maintain a program to implement the workplace violence and harassment policies.

It is important to note that the definitions of “employer”, “worker”, and “workplace” are very broad. For example, “worker” includes both employees and contractors. A worker could include a cleaner, landscaper, superintendent, or property manager depending on the circumstances. As such, it is likely that most, if not all, condominiums in Ontario would be required to have these policies and programs in place.

A sample workplace violence policy and program has been produced as part of the Ontario Ministry of Labour’s Workplace Violence and Harassment: Understanding the Law guide which can be found here: https://files.ontario.ca/wpvh_guide_english.pdf It is important to keep in mind that the workplace violence and harassment policies and programs must be modified to reflect the risks of the workplace after the employer completes its risk assessment.

Make sure you check back for part 2 of this series for more required policies and some recommended ones.