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Regulation on proof of vaccination is out: what it means for condos?

UPDATED

On September 1, 2021, the province announced that it would require Ontarians to show proof of vaccination in certain public settings.  We blogged about this already. This post summarizes the obligations of condo corporations with respect to vaccination for both occupants and employees/contractors.

Overview

Condo Occupants

The applicable regulation  only requires “patrons” to show proof of vaccination.  While this term is not defined, a consensus appears to have emerged that, for now, condo corporations are not captured by the requirement to verify the vaccination status of the residents/occupants using indoor amenities. Despite this, condos continue to have the authority and ability to adopt vaccination policies requiring occupants to show proof of vaccination in certain setting. With the current Delta-variant, confirming vaccination status may be a reasonable precaution to ensure the safety of those using your facilities.

Employees/contractors

The regulation adopted pursuant to the Reopening Ontario Act expressly provides that businesses and organizations are required to implement and comply with COVID-19 vaccination policies based on advice and recommendations issued by Medical Officers.  Many Public Health Units have, indeed, issued such recommendations.  While this may vary from one public health unit to another, many condo corporations are currently mandated to adopt a vaccinations policy for its employees.

Condo Occupants

Where will proof of vaccination be required?

The regulation requiring proof of vaccination provides that the person responsible for a business or organization will have to require each patron [we will come back to this word] to provide proof of full vaccination and proof of identification at the point of entrance in order to access the following:

  • Indoor areas of meeting and event spaces;
  • Indoor areas of facilities used for sports and recreational fitness activities, including waterparks and personal physical fitness trainers;
  • Indoor restaurants, bars, food or drink establishments.  This will also apply to outdoor establishments if dance facilities are provided;
  • Indoor areas of concert venues, theatres and cinemas;
  • And more. You may want to consult the full list found in the regulation.

So far, this requirement applies while Ontario is under Step 3 (the one we are currently under) and it appears that it will not be required once we move to the Roadmap Exit Step – whenever that is.

Exceptions

The requirement to provide proof of vaccination will not apply to the following:

  • kids under the age of 12;
  • youth under the age of 18 who are entering an indoor facility used for sports and recreational fitness or to participate in an organized sport;
  • to use a washroom;
  • to access an outdoor area that can only be accessed through an indoor route;
  • to make retail purchase or to place, pick up or pay for an order; and,
  • there are more exceptions, including places of worship, weddings or funeral (but proof of vaccination will be required for the receptions associated with same). You may want to consult the regulation for the full list.

Medical Exemptions

Those seeking to be exempt from this requirement based on a medical condition will be required to provide a written document, completed by a physician or registered nurse, documenting both:

  • that the individual is exempt for a medical reasons;; and
  • the time-period over which the medical exemption will apply.

The Ministry of health has issued a paper on Medical Exemptions to COVID-19 vaccination indicating that there are “very few” actual contraindications which will qualify as a medical exemption and that “true medical exemptions are expected to be infrequent and should be supported by expert consultation.

What does it meant to be fully vaccinated?

To be fully vaccinated for the purpose of this regulation, Ontarians must have received one of the following:

  • a full series of COVID-19 vaccine authorized by Health Canada or a combination of these vaccines for those who received mix vaccines;
  • One or two dose of a vaccine not authorized by Health Canada provided that it is followed by an approved mRNA vaccine;
  • three dose of a vaccine not authorized by Health Canada.

Vaccination will need to have been completed for at least 14 days.

Proof of vaccination will need to be complete and accurate.

When will this be in effect?

For the most part, proof of vaccination will be required as of September 22, 2021 (there are exceptions for funeral/weddings until October 13).

Does this apply to condos?

The regulation imposes the obligation to provide proof of vaccination only on “patrons” entering one of the facilities listed in the regulation. In comparison, the mask requirement applies to “any person” on the premises. It is also interesting to note that some capacity limits apply to “members of the public” and that prior versions of the regulation referred to “any one using” a specific facility. So, the one thousand dollar question is: what is a “patron” and are condo dwellers using the fitness room “patrons”?

As the expression “patron” is not defined in the legislation or regulation, we have to fall back on the ordinary meaning of the word (in the context of the objective pursued by the regulation). The Merriam-Webster dictionary defines “patrons” as the person “who buys the goods or uses the services offered by an establishment”.  While one could argue that patronage involves a certain commercial element or an exchange of money (we don’t agree that the definition necessarily turns on this); others would argue that the word “patron” is used here is to distinguish those using the services from those employed by the establishment. The person on the treadmill is the patron; the person cleaning the floor is not. Still, serious consideration must be given to the fact that the drafters of the regulation have chosen to use the word “patron” and not “any person”.

So, where does that leave us? A consensus appears to have emerged in the industry that condos are not captured by the obligation to verify the vaccination status of its residents/occupants.  This is supported by a statement issued by the Ontario Ministry of Health on September 28, 2021 opining that facilities in condo buildings that are not open/accessible to the public are likely not public settings or facilities that would be subject to proof of vaccination.

Still, in the context of the current Delta-variant and increasing COVID numbers, a reasonable additional precaution may be that of ensuring that those using your amenities are vaccinated. After all, what is the difference between a fitness room in a big condo and the commercial fitness room around the corner. Whatever logic applies to the need to verify vaccination status in public settings, in our view, squarely apply in most condos.

Having said the above, we realize the important logistical challenge for condos if they take on vaccine status verification.

Naturally, some condo corporations may opt instead to close these amenities (pursuant to their duty and powers to control, manage and administer common elements) until they are safe to open.

Employees/Contractors

Public Health Units vaccination policies

As we read it, vaccination policies are now required in workplace settings of a condos in certain Public Health Units (such as Toronto and, in certain cases, in Peel). Indeed, prior to the adoption of a provincial vaccination passport, on August 24, 2021, Ontario discretely amended its regulation under the Reopening Ontario Act to expressly:

…require businesses and organizations to establish, implement and comply with COVID-19 vaccination policies based on advice, recommendations and instructions issued by the Office of the Chief Medical Officer of Health…

This means that, when and if Medical Officers of Health recommend the adoption of vaccination policies, businesses and organizations (this includes condos) will have to adopt and implement such policies.

Some public health units in Ontario, such as Toronto, Halton and Peel and, to a lesser extent, Ottawa have recommended that businesses and organizations adopt workplace vaccine policies. To some degree, these public health units left open to individual businesses and organizations to determine the precise scope and content of these policies.

We list below the vaccination policy requirements (if any) for the following Public Health Units.  You don’t need to read it all.  Scroll down to the Public Health Unit of interest to you.

Ottawa

On September 2, Ottawa Public Health went from “welcoming” the adoption of vaccination policies to strongly recommending that all Ottawa employers implement workplace vaccination policies to reduce the risk of COVID-19 transmission. It is to be noted that the City of Ottawa itself adopted a policy requiring vaccination for all of its employees, volunteers and contractors.

In our view, any condo corporation with employees, contractors or staff on site should adopt and implement a vaccination policy.

Toronto

Toronto’s Public Health Unit went further. On August 20, 2021, it issued a statement strongly recommending that local employers institute a workplace vaccination policy to protect their employees and the public from COVID-19. Toronto Public Health recommends that such workplace vaccination policy require at minimum that:

    • Workers provide proof of their vaccination;
    • Unvaccinated employees provide written proof of a medical reason from a physician or nurse practitioner that includes whether the reason is permanent or time-limited;
    • Unvaccinated workers complete a vaccination education course on the risks of being unvaccinated in the workplace.

The way we read this, if you condo has staff/employees on site and is located within the Toronto Public Health region, you must adopt a vaccination policy.

You can find more information on the above on Toronto’s COVID-19: Vaccine Information for employers.

Peel

Peel strongly recommends that employers consider the promotion of COVID-19 vaccination to workers. It recommends proof of vaccination only “where the need for vaccination is identified.”  Specifically, Peel strongly recommends that all employers review and update their COVID-19 workplace Safety Plans to:

    • Promote COVID-19 vaccination to workers;
    • Outline actions for unvaccinated workers, as necessary; and
    • Identifying workers’ vaccination status for outbreak prevention and control.

Where the need for vaccination is identified (in higher risk settings) the vaccination policy should require employees to provide proof of complete vaccination or written proof of a medical reason why vaccination was not obtained.  This written proof would need to come from either a physician or nurse practitioner.

York

York Public Health Unit does not appear to currently have a recommendation regarding workplace vaccination policies. Currently, pursuant to a direction dated April 2, 2021, York Public Health Unit only requires employers to provide information to workers about vaccination where workers are prioritized by the Ontario Ministry of Health to receive COVID-19 vaccination, such as health care workers.

Halton

Halton’s Medical Officer of Health, Dr. Hamidah Meghani, is recommending that local employers address the need for a workplace vaccination policy to protect their workers and the public from COVID-19.  In Halton, workplace vaccination policies should explain their purpose, specific actions workers must take (including providing proof of vaccination status or a medical exemption) and timelines.

Halton has published a useful vaccination information page for employers.

Hamilton

Hamilton Public Health Unit does not appear to currently have a recommendation regarding workplace vaccination policies. However, a recommendation is likely imminent. Hamilton recently approved a mandatory vaccine policy for all city employees on August 26, 2021. Hamilton may follow in the footsteps of Toronto, which announced a mandatory vaccine policy for city employees shortly before making a recommendation for vaccine policies for all employers in the city.

Vaccination policies

While, for now vaccination policies are not mandated for occupants/residents using indoor amenities, they are required for most condo corporations with employees (depending on the Public Health Unit where your condo is located).

Regardless of whether vaccination policies are required, adopting such policies may make sense in the current situation. For those considering the adoption of such policy, there is no doubt that condos have the authority and ability to adopt them. This authority is based on the condominium’s statutory duty to:

  • ensure the property is reasonably safe (s. 26 of the Condo Act)
  • control, manage and administer the common elements (s. 17)
  • prevent dangerous conditions/activities to exist, and (s. 117)
  • maintain a safe and healthy workplace.

Some may ask about the rationale to adopt a policy requiring proof of vaccination for those using interior amenities. I think the rational is simple: indoor amenities were closed earlier this year to minimize risk of transmission and to protect users.  These closures were required, in part, on the basis that masks and cleaning may not provide adequate protection.  What has changed since is the development and access to vaccines. But that only helps reduce the risk for those who are vaccinated.  Those who are unvaccinated continue to be exposed to the same risk they were exposed when amenities were closed. Nothing has changed for them. If it made sense to close amenities earlier this year to protect the unvaccinated (all of us), it may continue to make sense now for those who are not vaccinated.

What should go in a vaccination policy?

The target is still moving on what should go in a vaccination policy. Each Public Health Unit may have its own requirement and, as importantly, each condo corporation may have its own needs. A highrise, high-density condo with numerous indoor amenities would have needs which would vastly differ from a smaller or a townhome condo setting without indoor amenities.

Certainly, any vaccination workplace policy must adhere to the Occupational Health and Safety Act, the Ontario Human Rights Code and privacy laws

So far, Toronto Public Health provides the best summary of key points to be included in your policy:

  • An educational component to encourage vaccination and educate on the benefits of it;
  • Mandatory proof of vaccination when necessary to prevent the spread of COVID-19;
  • Bona fide medical exceptions when supported by a written statement from a licenced doctor or nurse practitioner (no need to include the reason for the exemption);
  • Deadlines by which compliance must be met;
  • A list of available support for vaccination;
  • Possibly paid leave to get vaccinated (and even perhaps if side-effects affect one’s ability to work);
  • Alternatives must be granted for workers who decline vaccination for reasons protected by the Human Rights Act or who are unable to complete their vaccination series for medical reasons.  These alternative could include the use of additional PPE; frequent tests, the use of vacation time or unpaid leave;
  • List the potential consequences for workers who do not fulfill the policy requirement;
  • Privacy considerations must be included in your policy by providing how someone’s vaccination status will be used by the employer to mitigate health-related risks of covid transmission:
    • How will you safeguard the personal health info;
    • Limit the collection of information to the worker’s name and date of vaccinations for each dose;
    • Keep vaccination info separate from the employee’s file; and,
    • Ensure that personal health/vaccination info is kept in a secure manner.
  • Identify a contact person for any question about the policy, accommodation possibilities and how to comply with the policy.

We have a solid vaccination policy for our clients wishing to adopt one. Don’t hesitate to ask us how we can develop a flexible and fair vaccination policy for you.

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Ontarians can book a vaccine appointment here.

You can download your proof of vaccination here.

Updated: Oct.. 11 at 1:00 pm


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