The nuances of amenity access during COVID

Industry delves into the intricacies of vaccine policies in condominiums
Wednesday, October 27, 2021
By Rebecca Melnyk

Condo corporations may feel conflicted over whether to implement a vaccine policy—one that would require residents and owners to prove they’ve had their two shots against COVID-19 before using a common amenity.

The province has been requiring proof of vaccination in select public settings since September 22, and condos can roll out their own policy as an optional response to creating healthier homes for their occupants. It’s a move that shows a corporation is acting reasonably safe to avoid dangerous conditions on its property, thus hindering liability exposure.

A policy of this nature, however, may spark emotionally-charged debates from opposing residents. Enforcing it is even more challenging.

As the virus remains a threat, Delores Radcliffe, a high-rise condo board director, former senior program consultant for the Ministry of Health, and a panelist at the CAI Canada V-CON(DO) 2021 conference, says there must be a way to protect vulnerable residents and encourage best health practices, while offering accommodation to those who refuse to comply due to medical conditions or other exemptions.

“It is also reasonable to ask members of the community to be good Samaritans, that it isn’t that much of an infringement on their personal freedoms to be kind to others who help protect the safety of the community,” she says.

Managing a clash of ideologies

A patchwork of belief systems colliding with a vaccine policy is what one management professional calls a “minefield” in a condo community.

“The reason is because it’s a heated, personally-charged issue,” says Ari Soroka, vice-president of operations at Nadlan Harris. “There is an absolute clash of ideologies here. You’re going to have a lot of issues when you do this, one way or the other.”

Understanding why people adamantly refuse to be vaccinated is part of the story. As Radcliffe says, feelings need to be legitimized while reminding antagonists of the greater good of the community. Getting residents on board is often a case-by-case basis.

“Every small circumstance would have to be treated individually and with some sensitivity,” she says. “There can be all sorts of reasons why people aren’t getting vaccinated. We just need to understand why and work with as many people as possible to get them vaccinated or to get them to accept the rule or policy and comply with that. Then you have to think about what you’re going to do to enforce compliance. I like to think we can do as much encouragement and awareness training and support individuals. But we need not just a carrot; we need a stick.”

As a representative for her corporation on the shared facilities committee with a neighbouring high-rise, obtaining consensus from both buildings multiplies the challenge. “Most boards are trying very hard these days to retain as much access to their amenities as they can, especially as people went through a whole year of social isolation,” she says. “There’s a real intent to try to be accessible that we need to honour and that helps get through things.”

Think before adopting a policy

Corporations are advised to do what’s best for their communities. If they decide to require vaccination for amenity access, a first step is understanding the commitment it will take to enforce that and setting realistic goals.

“Make sure that when you are crafting this policy, you can actually comply with it,” says condo lawyer Josh Milgrom of Lash Condo Law. “It is counterproductive to have a policy that you are not following. “If a corporation does have a policy and is not complying with it, and knows it is not complying with it, there could potentially be exposure on the corporation.”

Milgrom advises condo boards to consider the nature of the amenity, how it’s used and where it’s located, and then assess the risk of COVID-19 transmission for that particular space. “You don’t need to have a policy that covers everything under the sun; you can have it specific to each amenity. List the amenity to which the policy applies instead of doing a broad sweep.”

Furthermore, Radcliffe prescribes that boards have a risk assessment tool on hand to help judge the risk level of various amenities and to ease the challenge of assessing them separately.

Getting people on board

Enforcing a policy could be an arduous pursuit, with a lack of sufficient staff to screen residents and also arguments from residents themselves.

“There needs to be that thoughtful, carry-it-through discussion, so you get your messages straight and they are as simple and straightforward as you can make them for all owners to understand,” said Radcliffe. “You could also identify that if people need an exemption, or want to tell you about an exemption and need accommodation, that is an offer for people as well.” The idea is to be as reasonable as possible; to deal with individual needs and concerns, while sending the message that all owners of the condominium must be protected.

Concerns over condo fee contributions are also likely to ensue. “Owners have the right to reasonable use of the common elements, but they don’t have the right to endanger the health and safety of other residents to the extent that an owner or residents’ use of the common elements would potentially endanger others,” says Milgrom. “That’s where they lose those rights, and even if they don’t use the amenities, they still have to pay for those common expenses.”

Diffusing fires

Resident-facing managers are strategizing ways to bring harmony to condo communities in the event of vaccine pushback.

“De-escalation is an art,” says Soroka. “Unfortunately, it hasn’t been taught in our industry enough. With human interaction, managers are left on their own, and I also encourage that kind of training for directors as well.”

“No matter how upset or angry people are who attack you, the biggest thing is they need to know they are being heard. You sponge the anger and then once you get to a place where you can begin the communication process, in a modality they can understand, then the healing begins. Those skills need to be taught to all your staff. Your security guards need to understand they’re not the vaccination police; above everything else, you have to maintain your professionalism and take emotion out.”

Milgrom advises slowly escalating efforts of enforcement. If someone doesn’t comply, communicate first, send reminders about the policy and what it provides for. If all else fails, warning letters might follow, then potential legal letters, and a compliance application.

“We saw an application in the context of people not wearing masks,” he says. “And the courts have confirmed that a failure to wear a mask without an appropriate exemption, constitutes a breach of Section 117; it constitutes a dangerous condition, so I can see similar logic applying in the context of a person who is refusing to comply with the vaccination policy in the amenities.

“Have that plan in place, know what you’re going to do when you encounter a resident who is not complying and maybe even put that directly in your policy. Specify those steps you are planning on taking, so boards, managers, owners, and residents know exactly what the policy is for people who don’t comply.”

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