Vaccination Attestations: Major tenants are asking

PANDEMIC PAPERWORK

Vaccination Attestations Becoming a Common Demand

By Barbara Carss

PANDEMIC PAPERWORK is becoming more voluminous for commercial landlords as a growing list of influential tenants ask for proof that building personnel have two valid COVID-19 vaccinations, but industry insiders suggest it’s in line with health and safety obligations that are already well understood. Building owners/ managers should be acutely aware of their duty of care for occupants, visitors and even trespassers on their properties, and have due diligence in place to ensure contractors and sub-contractors know the rules and their responsibilities.

“Most office owners that I know have required all of their on-site management and maintenance staff such as janitorial, security and other external contractors to be fully vaccinated,” observes Michael Brooks, Chief Executive Officer of REALPAC, which counts many of Canada’s largest commercial real estate companies and investment managers among its membership. “It’s not a surprise that tenants are calling on landlords to confirm this, and the anticipation of this [tenants’ demands] is why so many building owners are pre-emptively requiring it of their staff and suppliers.”

The Canadian government is one of those tenants. Public Services and Procurement Canada (PSPC) has instructed the landlords of all buildings where it holds leases to submit attestations by October 29 certifying that all building

personnel, including contractors and subcontractors, entering into federally leased premises will be properly vaccinated. That’s ahead of the November 15 enforcement date for the vaccination mandate in the federal public service.

OTTAWA LANDLORDS AFFECTED The directive is prompting something of a cascade of attestations in Ottawa’s commercial real estate market as landlords look in turn to their service providers for proof they can meet the government’s conditions. At least 50 corporate members of the Building Owners and Managers Association (BOMA) of Ottawa accommodate public service tenants, while various non-governmental organizations (NGOs) based in the city and consular officials of foreign governments are setting similar policies.

“Our members, in good faith, are just trying to comply. They’re going to get attestations from their contractors and provide attestations to PSPC as required, and do the best they can,” says Dean Karakasis, Executive Director of BOMA Ottawa. “It’s just another piece of paperwork that they didn’t have to do before March 2020, but they do have to do now, and they are working within those new parameters.”

A recent survey revealed that upwards of two-thirds of BOMA Ottawa corporate members already required proof of vaccination or negative COVID-19 tests from their own staff and contractors coming into their buildings, while supplier members faced the same requirements from many clients, particularly in the health care and education sectors. An absence of feedback on PSPC’s announcement has Karakasis concluding that the membership is largely unruffled at the prospect.

While PSPC’s advisory states “landlords who do not provide the required attestation, or who are subsequently discovered to have provided a false attestation, may be subject to additional measures”, few landlords are issuing warnings of their own.

“None of our members are talking in terms of firing people who are not vaccinated at this point, but policies could change,” Karakasis acknowledges. “We’ll all adapt as things go forward.”

NOT TAMPER-PROOF Compliance experts caution that some of the current frailties in proof-of-vaccination protocol could prove challenging for those now propelled into watchdog

CONSIDERATIONS FOR MULTIFAMILY BUILDINGS

By Kristin Ley and Laura Gurr

COVID-19 vaccination requirements are not mandated for the use of indoor common space in apartment buildings and condominiums. However, landlords or condominium boards of directors can choose to implement policies. They are advised to consider a number of factors when making that decision, including: • liability for failing to take steps; • financial considerations; • logistics of enforcing the rule (e.g. self-reporting, controlled access system, etc.); and, • the physical aspects of their particular buildings.

It is strongly recommended that any vaccination policy for indoor spaces clearly distinguish between essential indoor spaces, such as garbage/recycle rooms, the mailroom and laundry facilities, versus non-essential indoor spaces like a pool, gym, or lounge area. Landlords should also consider how they will accommodate individuals who cannot get vaccinated on the basis of a prohibited ground of discrimination, such as a disability or a religious objection to vaccination.

It is critical to recognize that any vaccination policy must comply with applicable privacy laws. Privacy considerations should be explicitly included in each policy by providing information about how someone’s vaccination status will be collected and used, and how long the information will be retained. Generally, organizations should consider ways to limit the information that they collect and how long that information is retained.

Multifamily landlords and condo boards may also choose to implement vaccination policies for building staff and contractors. Choosing to implement a policy will better protect building occupants and all workers on-site and could also reduce liability risks. Again, these policies must comply with privacy laws, human rights codes and occupational health and safety regulations.

Kristin Ley and Laura Gurr are Partners with Cohen Highley LLP in London, Ontario, a specialist in representing providers of multifamily housing and condominium corporations.

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positions. Notably, it’s easy to forge the PDF-based receipts that provincial health agencies issued widely as records of vaccination which, in some cases, are still being accepted in lieu of scannable QR codes.

“Anybody who has Adobe Acrobat can take a vaccination receipt, make some changes and they’ve got a piece of paper that says they’ve been double-vaccinated,” advises Eric Hartley Gordon, Chief Executive Officer of Entuitive Compliance Inc., a provider of software-based monitoring and management of credentials and regulatory documentation.

It can also be problematic to verify vaccination QR codes outside the jurisdictions where they’ve been issued since there is limited ability to transfer information among various systems in Canadian provinces or U.S. states.

Gordon anticipates increasing interest in and demand for the COVID-19 modules that his company and similar service providers have added to their offerings. Those modules could help streamline monitoring and recordkeeping, support consistent tracking and transparency for national portfolios and, perhaps most importantly, quickly flag workers who haven’t provided proof of vaccination.

“In the bigger picture, it’s about liability if something should happen and there’s a lawsuit or an insurance claim or an environment that’s not safe for the workforce,” Gordon asserts.

GETTING BACK TO NORMAL The next couple of months could be opportune to sort out the logistics before office buildings are once again back at full occupancy. That’s particularly the case in Ottawa where many government departments will still be in work-fromhome mode until 2022.

For now, Karakasis reports landlords are maintaining health and safety protocols and communicating with tenants about evolving pandemic responses. Regardless of the extra administrative tasks the vaccination mandate may engender, many commercial landlords are taking heart that it’s a closer step to getting people back into their buildings.

“We’re in constant contact with PSPC. They are trying to let landlords know through us (BOMA Ottawa) and directly, as much as possible, the fluidity of their own changes, and we’re mindful and respectful of that.” Karakasis says. “Right now the industry is preparing for the return of office workers and we don’t have a percentage on that, but we’ll prepare as if everybody’s coming back.” zz

“It’s just another piece of paperwork that they didn’t have to do before March 2020, but they do have to do now.”

HVAC MAINTENANCE: KEEPING TENANTS SAFE & COMFORTABLE

It’s criti cal to execute on your building’s mechanical system’s upgrade before the next heati ng season to make sure you’re providing tenants with fresh, fi ltered air and a reliable supply of hot water before it’s too late. No doubt, it takes ti me to plan, order, and install commercial equipment, parti cularly in light of the current supply chain constraints, and planning replacements in advance of a breakdown will help you manage those risks while ensuring occupants have a safe and reliable heati ng system in the midst of a global pandemic.

“The last thing property stakeholders want to do is wait unti l it gets cold to turn on your heater and fi nd out it’s not working,” notes Scott Beneteau, General Manager of Commercial Services at Enercare. “Not only do you risk running against tenant guidelines for providing heat if nothing is working come September, but you could also fi nd yourself vying for a repair appointment ti me, among other properti es.”

By waiti ng unti l heati ng season, he adds, property managers and landlords will need to work swift ly to complete projects to keep the systems safe and reliable throughout the winter season.

A proacti ve partnership

There are many reasons why it’s criti cal to stay one step ahead of HVAC repairs and replacements. At the same ti me, there are reasons why property management teams may lack the ti me, manpower, or experti se to do so eff ecti vely. Delegati ng HVAC maintenance to a trusted and experienced HVAC maintenance partner can help avoid costly and constant system repairs.

This is the thinking behind Enercare’s preventati ve maintenance program. Aft er working with clients to select a maintenance program that fi ts, Enercare’s fully-licensed technicians carry out a broad range of inspecti ons and services throughout the year to ensure virtually all heati ng, cooling, and other HVAC components are operati ng at peak conditi on. What’s more, the program grants property teams access to Enercare’s 24/7 Support Centre to handle more ti mely concerns and emergencies.

In a recent article from The New York Times, over 500 epidemiologists and infectious disease experts suggested that more than 70% of those surveyed had someone in their household who was at high risk of serious illness or death from COVID-19. This further highlights the need to provide For more information, please visit: enercare.ca/commercial occupants with clean, reliable fresh air. commercialservices@enercare.ca | 1 855-321-1508