The right to know? Balancing health risks and privacy rights for landlords during COVID-19

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What is a landlord's responsibility when a tenant in a multi-residential building tests positive for COVID-19? Is a landlord obligated to share this information with other residents so they can take extra precautions? On the flip side, what expectation of privacy do tenants have if they share this information with their landlord? 

Many of our firm's housing clients have had to grapple with this difficult balance over the past few months as they weather the challenges brought on by the pandemic. 

First off, landlords cannot demand that tenants disclose the fact that they have tested positive for COVID-19. There are very limited circumstances under which a landlord can request that tenants disclose personal health information, for example, when a tenant is requesting a disability-related accommodation under human rights law. Otherwise, there is no legal basis for demanding that tenants disclose any health conditions.

Should a landlord become aware of a COVID-19 case in their building, privacy laws need to be followed. Despite all the changes we've seen at federal, provincial and municipal levels as a result of the pandemic, privacy laws relating to the collection, use and disclosure of personal information haven't changed. 

Depending on what province the building is in and what type of organization the landlord is, federal or provincial privacy laws may apply. For example, private-sector organizations in almost all provinces and territories are governed by federal privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), while Alberta, British Columbia and Quebec have their own similar privacy laws. 

These privacy laws apply to residential landlords and they govern how personal information about tenants can be collected and disclosed. If someone's personal information is compromised or unlawfully disclosed, that person can file a complaint with the federal or provincial privacy commissioner. 

"Personal information" is generally considered to be information that can be used to identify an individual. Examples include names, images, addresses or contact information. The general idea is that information that can identify someone is "personal information" and therefore subject to privacy laws. In most cases, personal information cannot be disclosed without a person's consent.

This means that if landlords find out there is someone in their building who tested positive for COVID-19, they cannot disclose any personal information relating to that person. There are no laws obligating landlords to inform residents of COVID cases in their building at all (however, landlords in many areas may be required to inform public health authorities), but many landlords will want to let tenants know so they can take extra precautions. And tenants are of course likely to want to know!

So, how should a landlord balance the protection of health and safety with a resident's right to privacy?

Landlords can choose to notify residents of a positive case in their building by, for example, posting notices in common areas. However, there can be nothing disclosed in the notices that identifies the affected individual. For example, landlords cannot say that there is a positive case on a particular floor of an apartment building, or whether the case was reported by a resident or employee. 

A public notice can confirm that a positive case on the property was reported and inform residents of the extra measures the landlord is taking in accordance with public health directives. The ultimate goal of notifying residents is to encourage people to take extra precautions.

Landlords should also consider whether the size of their buildings makes it more likely that the identity of the affected resident will be inadvertently disclosed -- smaller buildings may make it more difficult to ensure anonymity of the affected person. If that's the case in your building, it may be helpful to preemptively inform residents that you will not be letting them know about COVID cases in the building. Indeed, given the risks from asymptomatic carriers, some might say that it's best if everyone act as if there is already a case in the building. Consider what additional actions you might take if informed of a COVID case in your building. And then consider that there could already be cases you don't know about! 

This is truly a situation in which an ounce of prevention is worth a pound of cure. Landlords should be following local health guidelines for cleaning high traffic areas and encouraging social distancing. And they should do what they can to encourage residents to follow guidelines as well, especially as restrictions lift across the country, which might tempt people to relax their efforts.

Claudia Pedrero is a lawyer with Iler Campbell LLP where she works on a range of governance, human rights and housing issues for non-profit clients. Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

Image: Ashton Emanuel/Flickr

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