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What does ‘Modified’ Step-2 mean for Condo Land?

by: Rod Escayola |

On January 3, 2022 and in response to the spread of the Omicron variant, Ontario announced that it would move back to a Modified Step 2. Within hours, Ontario issued new regulation amending its already existing Step 2 regulation.

On this page we provide a summary of the new measures as they apply to condos.

Hear more about these at next week’s webinar (Wednesday at 5pm).

Overview of changes

  • Social gathering and organized public events must be limited to:
    • 5 people indoors
    • 10 people outdoors 
  • Indoor sports and recreational fitness amenities (ie. gyms and pools etc.) must be closed.
  • Indoor recreational amenities must be closed.
  • Short-term rentals are now limited to people in need of housing.
  • Employees must work remotely unless the nature of their work requires them to be on site. This may affect how some services are provided to CondoLand.
  • The rest of the measures already in place under Step 3 continue to apply with little changes.

These measures will be effective on January 5, 2022 and are expected to be in place for at least 21 days (or January 26, 2022).

This regulation applies to business, organizations or places.  Clearly, they apply to condos.

Detail of measures

Below are some of the measures set out under the new Modified Step 2. Naturally, we are focusing mainly on those having an impact on Condo Land.  You may want to consult the regulation if you want to get a full picture of all new measures.

Masks

Face masks covering one’s mouth, nose, and chin are required in all interior common areas, with the usual exceptions related to age, health and disability. This applies to indoor common elements unless the corporation is able to ensure that a 2-metre distance is maintained between individuals. In the current circumstances, is it best for condos to adopt a mask policy.  We can assist you with this to ensure it complies with provincial and municipal requirements.

Those entitled to one of the mask exception do not have to provide evidence of this but courts have, in some cases, limited the movement of those not wearing a masks to what is essential to access their unit/parking by the most direct route.

You can read more about masks in condos here.

Screening

Condos must post signs at all entrances of their premises (in a conspicuous location visible to the public) informing individuals on how to screen themselves for COVID-19 prior to entering the premises. We refer to this as a passive invitation to occupants and visitors to screen themselves.

On the other hand, condos must actively screen anyone who works at the condo.

We have found that posting a QR code at your entrance (allowing users to screen themselves using their smartphone) is very easy and useful.  You can read more about it here.

Public gathering

Organized public events and social gatherings must be limited to :

  • 5 people indoor (down from 10 in Step 3);
  • 10 people outdoor (down from 25 in Step 3).

The wording of the regulation continue to suggests that there may be a distinction between “social gathering” and “public event” gathering limits in outdoor settings. It is unclear to us where to draw the line between these two concepts in a condo setting. Probably best to stick to the the gathering limits listed above without attempting to make such a distinction.

These limits expressly apply even if the gatherings or events are held in a private dwelling or a condominium building.

There are some exceptions for people of the same household and other exceptions which are not all that relevant to condos.

Strictly speaking, you could hold your board meetings inside provided that there are no more than 5 participants, but why not continue with virtual meetings?  They work very well.

Sports and recreational fitness amenities

Indoors

All facilities providing for indoor sports and recreational fitness activities (ie. gyms, pools, etc.) must be closed. There are exceptions that do not apply to condos (mainly for elite or professional athletes and for early education or mental health support services).

This time around, the regulation makes no exceptions based on size or on level of occupancy (unlike in other iterations where gym capacity was reduced or minimal distance between users was imposed). In our view, the current measures are meant to be a blanket closure.

I have been asked already whether I think this closure applies to: small gyms; or those using online booking; or those limited to one user at a time; or whether it applies even though condo owners are not “gym members” but rather the owners of the equipment; or whether it applies considering that condo gyms are not commercial gyms…..

Yes. I do think it applies to condo gyms. The province could have easily carved out an exception for condo gyms (like it appears to have done for vaccines).  It could also have expressly addressed condos as it did when dealing with masks in dwellings and when dealing with gathering limits. The province has not carved out such exceptions for condos.

I know: It’s not a popular measure but this is how we read the regulation.

Outdoors

There are measures applicable to outdoor sport and recreational fitness facilities but the regulation does not appear to be adapted to the condo world and, as such, may not strictly apply to us.  We will leave it at that since there are likely very few relevant winter outdoor sports and recreational fitness amenities in Condo Land. It may be best to consult with your favourite condo lawyer to ensure you comply.

Exceptions for therapy

Both indoor and outdoor sports and recreational fitness amenities can, but do not have to, open for the sole purpose of allowing a person with a disability to use the amenity if they have received written instruction for  physical therapy from a regulated health professional who is qualified to provide these instructions and only if that person is not able to engage in this physical therapy elsewhere (which now may be the case with other traditional gyms being closed). Other conditions apply such as having in place a Health and Safety protocol (similar to a  Safety Plan) and provided that information is gathered for tracing purposes.

For what it’s worth, the Condo Authority of Ontario confirmed the requirement to close indoor fitness rooms and recreational amenities.

Pools, saunas etc.

Indoor pools, steam rooms and saunas must be closed (as they fall under sports and recreational fitness amenities – see above).

Recreational amenities

Indoor

Indoor recreational amenities must be closed.

Outdoor

Other than steam rooms and saunas, outdoor recreational amenities can open. There are other restrictions applicable to clubhouses.  If you believe these apply to you, you may want to consult with your favourite condo lawyer.

The new regulation no longer provide a restricted list of exterior amenities that can open. In our  views, this means that, other than the above, condo corporations can (but don’t have to) open their outdoor amenities.  Granted, there are likely very few of these in the winter but think of rooftop terraces, communal BBQs, garden areas, exterior benches, walking paths, etc.

Team sports and games which may result in personal contact cannot be practiced.

Keep in mind that condos can be more restrictive and opt not to keep these opened.

Meeting or event spaces

The regulation applicable to meeting or event spaces applies to settings where such spaces are rented out. If your condo rents out such spaces, you must consider the following:

  • Indoor rented meeting or event space must be closed (there are exceptions, most of which do not apply to condos);
  • In the unlikely event that the condo rents out outdoor meeting/event spaces, you should consult with your favourite condo lawyer to see the numerous restrictions that applies.

Proof of vaccination

Condo Occupants

Modified Step 2 only requires “patrons” to show proof of vaccination and only in certain settings (most of which do not apply to condos in any event).  While the term “patrons” is not defined, a consensus appears to have emerged that, for now, condo corporations are not captured by the requirement to verify vaccination status of residents/occupants using indoor amenities (when eventually opened).

Having said this, condos continue to have the authority and ability to adopt vaccination policies requiring occupants to show proof of vaccination in certain settings. With the current Omicron-variant, confirming vaccination status when accessing non-essential amenities (such as gyms, pools, etc. when eventually opened) 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 in employment settings.  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.

You can read more on vaccination in condos here.

Elevators

The Reopening Ontario Act does not regulate the number of users permitted to ride in an elevator – other than requiring those on interior common elements to wear a mask if they come within less than 2 metres of one another.  Having said that, this piece of legislation is clear that all public health guidance/recommendations must be followed.

The public health department of many municipalities continue to recommend that elevator capacity be reduced to a number allowing riders to keep a 2-m distance. If such a recommendation exists in your public health region, your condo corporation must continue to abide by it. By way of example, both the Ottawa and Toronto Public Health Departments continue to recommend that elevator capacity be reduced to allow riders to keep a 2-m distance between them.

Safety plan

As we read it, a Safety Plan is required if you are going to allow your recreational fitness amenities to be used for the very limited purpose of allowing therapy work in limited conditions (see above under gyms). The regulation calls this plan a Health and Safety protocol.

This safety plan should describe the measures and procedures implemented to reduce the risk of COVID transmission.  It should include protocols on screening, physical distancing, masks, and cleaning/disinfecting of surfaces, etc. It should be in writing and should be posted in a conspicuous place where the users can see it.

Remote working

Anyone working for the condo should conduct their work remotely unless the nature of their work requires them to be on-site at the workplace. So, some of your service providers may have to work from the condo (superintendent, cleaner, concierge….).  Others should work remotely. Some of the management work can be done remotely.

Short-term accommodations

Short-term accommodations must be limited to situations where they are provided to individuals who are in need of housing (so not for tourism or business accommodations). Even so, when/if such accommodation is provided, the renters cannot be provided access to indoor pools, communal steam rooms, saunas, whirlpools, fitness or other recreational facilities.

Keep in mind that your municipality or condo corporation may have restrictions on what short-term rentals can take place in your complex.

Cleaning disinfecting

Condos must continue to clean and disinfect any areas, amenities or equipment that are provided to, or used by, members of the public as frequently as is necessary to maintain a sanitary condition.  This applies, naturally, to washrooms, elevators, high touch areas, mircom dial pads, etc.

Essential services

Step 2 no longer lists permitted essential services allowed to operate. To us, this means that all services can operate normally unless they are required to be closed or to operate under certain conditions (see above). Naturally, in addition to the above, the following continue to be allowed to operate:

  • laundromats;
  • Lawncare and snow clearing;
  • Security services;
  • Deliveries (your lobbies and concierge office will continue to be flooded);
  • Maintenance, repair and property management related to the safety, security, sanitation and operations of the building or residential properties; and,
  • All constructions activities or projects and related services (these are no longer limited to residential and other exceptions that existed before).

Others

Condos must continue to comply with:

  • the Occupational Health and Safety Act;
  • the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

Finally, keep in mind that the above provincial measures are the minimal requirement. Regional Public Health departments can issue additional recommendations and directives.  See, for example, the following:

    • You should look up your local public health directives.

You can review Step-2 Regulation here.

You can review the CAO’s update on these measures, here.

Hear more about these at next week’s webinar (Wednesday at 5pm).

 

Updated on Jan. 5, 2022 at 2:30