As we previously posted, the City of Philadelphia announced that vaccines will be mandatory for healthcare workers and those at colleges and universities in the city, absent a religious or medical exemption, beginning on October 15, 2021. On August 16, the Board of Health adopted the Emergency Regulation Governing the Control and Prevention of COIVD-19 Mandating Vaccines for Healthcare Workers and in Higher Education, Healthcare and Related Settings (“Emergency Regulation”). The Emergency Regulation provides additional detail about the vaccine mandate, exemptions, and accommodations.

Covered Individuals

Healthcare:  All employees, contractors, students, volunteers, or healthcare workers affiliated with a healthcare institution who perform duties in a building where patients, clients, or their visitors are present are covered by the Emergency Regulation – even if their duties do not include direct contact with others.  Healthcare institutions include any person or entity that employs, coordinates, or otherwise engages in any 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.

Higher Education:  Anyone who works, volunteers, or attends one or more classes or other activities on campus in connection with a college, junior college, or university and has in-person contact with others is covered by the Emergency Regulation.

Requirements Effective October 15, 2021

Healthcare institutions may not employ, contract with, or otherwise utilize the services of a covered individual that has not been fully vaccinated or exempted from vaccination. Similarly, a higher education institution may not employ, contract with, or allow on campus for classes, any individual who has not been fully vaccinated or obtained an exemption and complies with one or more of the offered accommodations.

Exemptions

Healthcare and higher education institutions must grant an exemption to individuals who cannot take the vaccine for medical or religious reasons and agree in writing to abide by the required accommodations.

Medical exemption: A covered individual must request a medical exemption by submitting a certification from a licensed healthcare provider, certifying that the exemption applies and stating the specific reason that the vaccine is contraindicated for the individual. The certification must be signed by both a healthcare provider and the covered individual subject to the certification penalties of the Philadelphia Code.

Religious exemption: A covered individual must request a religious exemption by certifying in writing that their sincerely held religious belief precludes them from receiving the vaccine. The certification must be signed by the individual subject to the certification penalties of the Philadelphia Code.

The City’s requirements establish a “floor” for determining whether an exemption applies.  Employers are free to adopt accommodation processes, including verification or certification steps, that comply with the ADA and Title VII.

Accommodations

If a covered individual properly requests an exemption, the institution must adopt one or more of the following required accommodations:

1. Routine Testing.   For healthcare, PCR or Antigen testing twice per week; for higher education, PCR testing once per week, or Antigen testing twice per week.
2. Masking and Distancing.   Only for higher education institutions with 90% or more of covered individuals fully vaccinated, exempt individuals must double mask indoors and remain at least six feet from others at all times, whether on campus or off-campus engaged in an activity affiliated with the higher education institution.
3. Virtual Accommodations.  If feasible, a covered individual may engage with either a higher education or healthcare institution through wholly remote means or in another manner such that the individual no longer qualifies as a covered individual.

In addition, all individuals must continue to wear face masks or other face coverings consistent with the City’s June 15, 2021 Emergency Order Establishing Safety Measures for Full Reopening to Prevent the Spread of COVID-19.

As with the exemption criteria, the City’s requirements establish a “floor” for what an employee who is being accommodated as a result of an exemption must do.  Employers are free to determine that these accommodations are not sufficient to maintain a safe working environment and to impose additional restrictions consistent with the ADA and Title VII.

Documentation

Healthcare and higher education institutions must maintain documentation of the vaccination status of each covered individual, any requested exemptions, whether each exemption request was granted or denied and why, and the accommodation(s) granted to each exempt individual.

Ballard Spahr’s labor and employment team is ready to assist any employers seeking to roll out a mandatory vaccination program that complies with the City’s Emergency Regulation.