What About Requiring That Face Masks Be Worn on the Common Elements?

As our readers are no doubt aware, the advice from public authorities in relation to face masks has been variable. At some times we have been told that face masks should be worn (in order to reduce the risk of transmission of COVID-19). At other times we have been told that face masks are not helpful.

But the prevailing view from health experts and public officials now seems to be that face masks should ideally be worn in order to reduce the risk of transmission of the virus, any time someone may be in close contact with persons from other households, particularly where it is not practically possible to maintain the recommended two-meter physical separation (between persons).

THAT SAID: So far, the province of Ontario has not issued any orders requiring that persons wear face masks in any particular circumstances. Instead, the province has decided to leave any such orders up to local health authorities.

In eastern Ontario, such orders have been issued by some local health authorities. For instance:

1. Ottawa Public Health has ordered that face masks be worn by public transportation customers. The Ottawa Public Health website currently includes the following:

“Ottawa Public Health recommends wearing a cloth mask when in public places, like the grocery store, especially if physical distancing is not possible. Beginning on June 15, all OC Transpo customers are required to wear a cloth mask while using their services, but some exceptions apply.”

The website goes on to provide additional detail about the appropriate materials for face masks, about how to wear face masks, and about other related matters. Notably, the website specifically says that the following persons should NOT wear face masks:

• Young children under the age of two 

• Anyone who has trouble breathing

• Anyone who is unable to remove the mask without help 

• Anyone who is unconscious or incapacitated  

2.  Kingston Frontenac Lennox & Addington (KFL&A) Public Health has recently ordered that face masks be worn at most commercial establishments in those regions.  The KFL&A website currently includes the following:

“Effective at 12:01 a.m., June 27, 2020 any customer, patron, employee, or visitor who enters a commercial establishment in the KFL&A region is required to wear a face covering while inside the establishment.”

The order goes on to specifically list the establishments to which the order applies (which includes a number of “public” establishments) as well as those to which the order does not apply. The order also states that it does not apply to an outside area, whether or not the area is covered. In addition, the order states that the requirement to wear a face mask does not apply if:

• The Person is a child under the age of two years; or a child under the age of 5 years either chronologically or developmentally and he or she refuses to wear a face covering and cannot be persuaded to do so by their caregiver;

• Wearing a Face Covering would inhibit the Person’s ability to breathe in any way;

• For any other medical reason, the Person cannot safely wear a Face Covering such as, but not limited to, respiratory disease, cognitive difficulties or difficulties in hearing or processing information.

The bottom line is as follows:

1. Currently, in Ottawa, there is no order, from any public authority, requiring that face masks be worn on condominium properties. However, some condominium owners (particularly of commercial condominium units) may require that face masks be worn by persons attending at their units.

2. Currently, in Kingston, Frontenac and Lennox & Addington, the above-noted order of KFL&A Public Health may require that face masks be worn by some persons attending at units in a commercial condominium….and this MIGHT also apply to indoor areas of the common elements of those commercial condominiums. [This is something that would merit closer consideration in a given case.]

3. But the above-noted orders (from Ottawa Public Health and KFL&A Public Health) do not otherwise apply to condominiums.  [Needless to say, this is a “moving target” and the requirements, from public authorities, could therefore change at any time!]

HOWEVER: In my view, a condominium’s Board of Directors could nevertheless require that face masks be worn by persons on the condominium’s common elements.   In my view, this is a decision to be taken by the Board in each case, based upon considerations of safety and more generally based upon the Board’s mandate to manage the common elements, taking into account the nature of the condominium property, the nature of the occupants and any other factors that might be relevant in the particular case.

If a condominium Board decides to require that masks be worn by persons on the condominium’s common elements, the Board may wish to consider the following:

• What persons will be exempted from the requirement?  For instance, the Board may wish to consider exemptions similar to those from KFL&A Public Health, listed above.  It also occurs to me that the Board may wish to reserve the right to grant OTHER specific exemptions (at the Board’s reasonable discretion).  This might, for example, allow the Board to grant an exemption to a contractor who will not be working near any else.

• Would it make sense to have this requirement apply only to certain specific persons who make “most use” of the common elements (such as certain staff persons, Board members, the Manager, and/or certain contractors)?

• What parts of the common elements will be subject to the requirement?  For instance, will the requirement apply only to ALL indoor areas, or to a LIST OF SPECIFIC indoor areas?  Will this requirement also apply to any outdoor areas?

• How will the requirement be implemented? Will signage be required (for instance at all entries to the building)? Will masks be made available to persons without masks? Will any detail be offered in relation to the type of mask that would be considered acceptable?  Would it make sense to refer persons to the website of the local Health Authority for answers to questions about the face mask requirement?

• How will the requirement be enforced? Some condominiums have decided, for many of their pandemic requirements, that a campaign of education and persuasion is the best enforcement alternative. In other cases, the idea of passing and enforcing a Rule is the preferred approach. In still other cases, practical alternatives (like refusing entry to the property in the event of non-compliance) may be possible.  Each Board will need to consider what enforcement approach most suits their particular needs.

In conclusion, it seems to me that more and more condominium Boards and Managers may be grappling with the idea of imposing a requirement, or expanding an existing requirement, in relation to the wearing of face masks on the common elements.   In my view, it is something that may at least merit consideration in every case.

I hope this blog provides some “food for thought” on the issue.