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Proof of vaccination in condos vs. Ontario Human Rights

As our readers know, as of today, the province requires Ontarians to provide proof of vaccination along with photo ID to access certain public settings and facilities.  We’ve blogged about this already and what it means in condos.

In this blog post, we discuss the statement issued by the Ontario Human Rights Commission on proof of vaccination certificates.

Are condos required to get proof of vaccinations?

There seems to be an emerging consensus that, under the current provincial regulation, condos are not required to secure proof of vaccination from occupants wishing to use their fitness rooms.  As we stated in our prior blog, this is due to the fact that the regulation (as it reads now) requires proof of vaccination from “patrons” – a word which is not defined in the regulation

While the Ontario Ministry of health is not categorical about it, they did issue a statement indicating that :

Facilities in… condo buildings… that are not open or accessible to the public are likely not public settings or facilities that would be subject to proof of vaccination.  However, organizations may implement their own rules respecting use of gyms or meeting or event spaces. These organization may wish to consult their legal counsel if they are considering such a measure.

Can condos ask for proof of vaccination?

There is no doubt that condos can adopt a policy or a rule requiring proof of vaccination from those wishing to access the amenities. This falls squarely within the Corporation’s authority and duty to control, manage and administer the common elements and within its duty to take reasonable steps to ensure the reasonable safety of those on the premises.

Now, whether it makes sense for the corporation to adopt such a policy is a question to be carefully considered and discussed with your legal advisers.  In the context of such discussion, you may want to consider the Statement issued by the Ontario Human Rights Commission on vaccine mandates and proof of vaccine certificates.  Below, we summarize the key points of this statement.

Vaccination requirements are generally permissible

While receiving a COVID-19 vaccine remains voluntary, the Human Rights Commission takes the position that requiring proof of vaccination from those receiving  a service is generally permissible under the Human Rights Code as long as protections are put in place to ensure people who are unable to be vaccinated for Code-related reasons are reasonably accommodated.  Code-related reasons include those who cannot be vaccinated for medical reasons. As will be discussed below, the Human Rights Code does not protect those who chose not to be vaccinated based on personal beliefs or opinions.

Duty to accommodate for medical reasons

Some people are unable to receive the COVID vaccine for medical reasons.  As our readers know, condominiums have a duty to accommodate disabilities up to undue hardship.  On that, the Human Rights Commission takes the position that exempting individuals with a documented medical inability to receive the vaccine is a reasonable accommodation within the meaning of the Code but goes on to say that this duty to accommodate can be limited if it would significantly compromise the health and safety of others to such as extent as to constitute undue hardship.

Possible accommodation could require those who are exempt from vaccination for medical reasons to take frequent, rapid antigen testing or, we suggest, to accommodate a reasonable schedule where the amenity is opened to those who are not vaccinated.

The Commission confirms that those seeking a medical accommodation can be required to provide a written document, supplied by a physician or a registered nurse stating that they are exempt for a medical reason and stating how long this exemption applies for.

What goes in a good vaccine policy?

If you are going to adopt a policy or rule requiring condo dwellers to provide proof of vaccination, you should consider:

  • building it in line with the existing provincial regulation (even if it does not strictly apply to condos);
  • including a mechanism to deal with medical exemptions;
  • minimizing the information you gather to what is strictly required and not keeping any of the information;
  • including rights-based legal safeguards for the appropriate use and handling of personal health information;
  • applying your policy for the shortest possible length of time (for instance only for as long as it is justifiable during the pandemic); and,
  • reviewing and amending your policy regularly and as required to conform with changing public health guidance and science.

Personal preferences and singular beliefs are not protected Human Rights

The Human Rights Commission and applicable human rights legislation recognizes the importance of balancing people’s right not to be discriminated on a prohibited ground with the collective need to minimize the risks associated with COVID transmission.

While the decision to receive the vaccine remains a personal choice, the Ontario Human Rights confirmed that a person who chooses not to be vaccinated based on personal preference does not have a right to be accommodated under the Human Rights Code.  

“Personal preferences or singular beliefs do not amount to a creed for the purposes of the Code

The Commission confirmed that it is not aware of any tribunal or court decision that found someone’s personal beliefs on vaccines or masks to be a creed protected under the Human Rights Code.

 


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