On August 13, 2021, Philadelphia’s Department of Public Health (“DPH”) announced an emergency regulation, available here,
mandating COVID-19 vaccines that will affect healthcare institutions and the City’s colleges and universities. Many of the
largest employers in the city—healthcare providers and higher education institutions—have already announced their own
COVID-19 vaccine requirements.

What You Need to Know:

• The vaccine mandate reaches a broad range of employees, students, faculty and staff at covered institutions and has limited exceptions.
• Medical and religious vaccination exemptions are carefully tailored under the new regulation.
• Institutions should create separate file storage systems to collect and retain records related to the vaccination mandate as required under the new regulation.

Starting October 15, 2021, all covered healthcare personnel and covered higher education individuals must either be fully vaccinated against COVID-19 through any of the available vaccines, qualify for one of two limited exemptions, or meet one of the exceptions to the vaccine mandate.

The emergency regulation will remain in effect until rescinded by the City’s Board of Health.

DPH and the City continue their efforts to combat the COVID-19 pandemic, which, to date, has resulted in more than 17,000 hospitalizations and 3,800 deaths in the City.

Healthcare

The regulation defines “covered healthcare personnel” as individuals who perform “duties in a building where patients, clients, or their visitors are present, whether or not such duties include direct contact with patients, clients, or their visitors.” The definition excludes individuals who exclusively telework and employees of non-healthcare businesses like grocery stores who provide healthcare services.

Covered healthcare personnel are also individuals who provide “healthcare related services,” which covers those who work in one of the following fields: inpatient or outpatient medical or behavioral health, dental, nursing, medical first responder, pharmacological, personal care home, assisted living residence, intermediate care, adult daycare, long-term care facility, acupuncture, audiology, hearing aid, chiropractic care, naturopathic care, occupational therapy, physical therapy, athletic training, optometry, ophthalmology, or speech language pathology services.

The City’s regulation does not explicitly require individuals to be vaccinated; rather, the regulation prohibits healthcare institutions from employing, contracting with, or otherwise using the service of unvaccinated covered healthcare personnel (unless they have received an exemption). The regulation places the burden on the employers rather than the healthcare employees. If a covered healthcare personnel qualifies for an exemption to the vaccine requirement (as defined below), the unvaccinated person must both wear a mask while in the workplace and submit to either a Polymerase Chain Reaction (PCR) test or an antigen test for COVID-19 at least twice per week, as “timed appropriately under the circumstances.” The regulation does not provide additional clarity for what constitutes being timed appropriately, although DPH is expected to issue updated guidance concerning the regulation.

Higher Education

Philadelphia’s COVID-19 vaccine mandate for colleges and universities is broader than the healthcare vaccine mandate as it includes faculty, staff, and students. The regulation defines “covered higher education individual” to include anyone who “works, volunteers, or attends one or more classes or other activities on campus in connection with a Higher Education Institution” and has in-person contact with at least one other person who meets the above definition. Like the provision affecting healthcare personnel, the City’s regulation excludes all individuals who engage with the higher education institution “exclusively through telecommunications devices” from the vaccine mandate.

Similar to the healthcare vaccine requirement, the higher education mandate prohibits institutions of higher education from employing, contracting with, or using the services of unvaccinated individuals unless they meet a limited exemption. The higher education portion of the regulation also prohibits institutions from “allow[ing] on campus for classes in an indoor setting” any unvaccinated individuals. These combined definitions suggest that the restrictions do not apply to community groups using higher education campus facilities or travelling sports teams, for example.

Covered higher education individuals who seek an exemption are entitled to seek broader accommodations which recognize the different setting of higher education versus healthcare. Institutions of higher education can offer any one or more of the following accommodations to unvaccinated covered individuals:

1. Submit to a PCR test at least once per week OR antigen tests at least twice per week;
2. Provide virtual accommodations for classes and lectures, so long as the unvaccinated covered individual engages through
   “wholly remote means”; or
3. Only for those institutions of higher education that attain 90 percent vaccination among all covered individuals, such institutions may permit unvaccinated covered individuals to “double mask” while indoors and maintain social distancing of six feet from others at all times, whether on campus or off-campus while engaged in an activity affiliated with the institution. Double masking requires individuals to wear either (i) a cloth mask on top of a properly-fitted surgical mask, or (ii) a well-fitted respirator, which is equivalent in quality to an N-95 mask.

Exemptions

Like most other jurisdictions, the City’s new vaccine mandate contains medical and religious exemptions, however they work differently than some other exemptions in the United States. Importantly, a covered institution must make the determination that the covered individual qualifies for an exemption. Moreover, an exempted covered individual must separately sign a document agreeing to abide by the accommodation(s) required by the institution.

A covered individual only qualifies for a medical exemption if the person submits a “certification from a licensed healthcare provider” to their employer or school which certifies the “specific reason that the vaccinate is contraindicated.” The medical exemption certification must be signed by a licensed healthcare provider as well as the individual requesting the exemption.

Religious exemptions work differently from the medical exemption insofar as they do not require a clergy member to co-sign an exemption request. Rather, individuals claiming a religious exemption under Philadelphia’s COVID-19 vaccine mandate will only need to certify that they have “sincerely held religious belief” that precludes them from receiving the COVID-19 vaccination.

False statements made on either the religious or medical exemption requests are subject to the City’s prohibition against false certifications and are possibly punishable by fines of up to $2,000 per violation.

Records Maintenance

All higher education institutions and healthcare institutions are required under the emergency regulation to maintain documentation related to the vaccine situation in their business, including:

1. Vaccination status of each affiliated covered individual;
2. Exemptions requested by covered individuals;
3. All certifications supporting exemption requests;
4. Documentation stating whether or not exemption requests were granted and why/why not; and
5. Any or all accommodations that were granted to each exempted covered individual.

For privacy and data security purposes, institutions should create file storage systems separate from employee personnel records. The emergency regulation also requires affected entities to allow representatives from the DPH to inspect vaccination records upon request.

Looking Forward

The rising surge of the Delta variant of COVID-19 has forced many governments (federal, state and local) and private sector employers to reevaluate the mitigation efforts in place to try and stop the spread of the virus. As the mayor and DPH continue to closely monitor the impact of COVID-19 on the City, it is likely that new safety measures may be implemented and modified as events warrant.

All employers in Philadelphia should regularly monitor DPH announcements to ensure continued compliance with new and evolving requirements, including how the City might handle third “booster shot” vaccine doses.