Balancing a Tenant’s Privacy Rights with Health and Safety Risks During COVID‐19
By Ripan Hans, Lawyer, Haddock & Company
Many of our firm’s housings clients have had to grapple with changes brought on by the COVID‐19 pandemic. One common concern is questions regarding what a landlord is required to do 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 that they can take extra precautions? How does a tenant’s right to privacy weigh in if a tenant tests positive for COVID‐19?
The Province has enacted Ministerial Orders that have amended (temporarily) several acts, including, for example, the Residential Tenancy Act, the Cooperative Housing Act, and the Strata Property Act, as a result of the pandemic. However, privacy laws relating to the collection, use and disclosure of personal information have not changed. This means that landlords in British Columbia are still bound to follow the Personal Information Protection Act (“PIPA”) and federal privacy laws.
Privacy laws govern how personal information about tenants can be collected and disclosed. “Personal information” is generally considered to be information that can be used to identify an individual. Examples include names, images, addresses, or contact information. In most cases, personal information cannot be disclosed without a person’s consent. If someone’s personal information is compromised or unlawfully disclosed, that person can file a complaint with the federal or provincial privacy commissioner.
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 in relation to that person.
There is currently no law requiring landlords to inform residents of COVID‐19 cases in their building. Landlords, however, may be required to inform public health authorities.
Landlords cannot require a tenant to disclose a positive COVID‐19 diagnosis. There are very limited circumstances under which a landlord can request that tenants disclose personal health information. (an example would be where 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. Furthermore, a tenancy or continued tenancy cannot be contingent on the provision of medical information. Nor can landlords end a tenancy if a resident is diagnosed with COVID‐19.
Of course, landlords may want to let tenants know of confirmed COVID‐19 cases in their building so that they can take extra precautions. So how should a landlord balance their requirements under the Residential Tenancy Act to ensure the protection of the health and safety of residents and the premises, with a tenant’s right to privacy?
Landlords can choose to notify residents by issuing a public notice 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. Such a notice may be sent to each respective unit through mail or be posted in common areas throughout the building. However, given the applicable privacy laws that are still in force, landlords should be very careful not to disclose personal information or information that could identify the individual who was positively diagnosed with the virus. Erring on the side of caution is recommended here. If a landlord manages a very small building, the landlord should be careful to not disclose whether the positive case is located on a particular floor of an apartment building, when the case was reported (if the number of tenants is small enough to determine which resident returned from overseas travel, for example), or whether the case was reported by a resident or employee.
As mentioned, a public notice can also inform residents of the extra measures the landlord is taking in accordance with public health directives. If a positive case of COVID‐19 is disclosed to a landlord, the landlord should contact their provincial and local health authority to obtain more information regarding any extra precautions and safety measures the landlord can take in light of having this information.
Landlords have a legal and ethical responsibility to implement measures to decrease the risk of disease transmission to their residents and employees. Thus, regardless of whether a landlord has knowledge of a confirmed case of COVID‐19, landlords should be following provincial and municipal health guidelines for cleaning high traffic areas and encouraging social distancing. Regional health authorities have published useful information for safety and cleaning practices landlords can implement to ensure the protection of their staff and residents. In addition, landlords should do what they can to encourage residents to remain vigilant and follow guidelines, especially as restrictions lift across the country, which might tempt people to relax their efforts.
This article is for general information purposes only and does not constitute legal advice. Every situation is unique and readers are encouraged to seek out the advice of a lawyer when implementing the strategies suggested in this article.