Can condos require COVID-19 vaccination or the disclosure of one's vaccination status?

As more than 50% of individuals in Ontario are now fully vaccinated, concerns have been raised regarding whether workplaces, establishments and condominium corporations can require that individuals be vaccinated and the instances in which the disclosure of one’s vaccination status is permitted by law.

In Ontario there is no provincial legislation that mandates COVID-19 vaccinations or the mandatory disclosure of one’s vaccination status, and it is highly unlikely that broad legislation mandating the former will be enacted given that Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) has been interpreted by the courts to protect a person's right to control over their own bodily integrity.  However, Ontario does have existing legislation that requires that workers in specific contexts, including child care, long-term care homes and paramedics, be vaccinated against other designated diseases. Ontario also has existing legislation that requires that children attending school to be immunized against designated diseases with allowable exemptions for medical reasons and religious beliefs.

Although the Charter applies to all levels of government in Canada and the legislation enacted by same, the Charter does not apply to condominium corporations and does not apply to the declarations, by-laws and rules created by condominium corporations. This does not mean, however, that condominium corporations can amend their declarations or create by-laws or rules in order to require that all residents be fully vaccinated against COVID-19 or to require that residents disclose their vaccination status since condominium corporations are encouraged to respect the values and principles underlying the Charter.

With the Charter aside, any attempt to require COVID-19 vaccinations would have to comply with the Ontario Human Rights Code (the “Code”) by permitting exemptions for enumerated grounds, such a disability or religious belief. As of the date of this article, no Human Rights Tribunal of Ontario decisions regarding COVID-19 vaccinations have been reported, however, as vaccinations continue to become more widespread it is likely that this issue will come before the Human Rights Tribunal of Ontario, particularly in the employment context.

In addition to the Charter and the Code, any attempt to require the disclosure of one’s vaccination status also engages significant privacy considerations. Accessing an individual’s confidential medical information, which would include an individual’s COVID-19 vaccination status, 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.  In this regard, condominium corporations do not have a right to demand that residents or employees disclose their COVID-19 vaccination status. If residents or employees were asked to voluntarily provide a condominium corporation with proof of their COVID-19 vaccination status, the recipient condominium corporation would have to comply with all applicable privacy laws, including those relevant to the collection, use and disclosure of medical records, such as Ontario’s Personal Health Information Protection Act (“PHIPA”). In this regard, the collection, retention and disclosure of the voluntarily provided confidential medical information would have to comply with PHIPA, which would require, at a minimum, that residents and employees be advised of the nature and extent of the information being collected, the purposes for which such collection is being conducted, where the information will be stored, who it will be shared with, and when and how it will be destroyed.

Accordingly, at this time condominium corporations should not require that their residents or employees be fully vaccinated or that their residents or employees disclose their vaccination status without first obtaining legal advice from their solicitors. What condominium corporations can currently do, however, is encourage all residents and employees who are eligible and able to get vaccinated against COVID-19 to do so, provide their employees with paid leave so that they can get vaccinated and to continue to follow the recommendations of public health officials