On October 6, 2021, Philadelphia’s Department of Health announced extensions to the city’s COVID-19 vaccine mandate, which applies to covered healthcare personnel and any individual who works, volunteers or attends one or more classes or other activities in connection with a university, college or junior college and has in-person contact with one or more of those individuals (subject to certain exemptions). Originally set to go into effect October 15, 2021, Philadelphia has stretched out and staggered the deadlines to provide healthcare institutions, colleges and universities additional time in which to comply.

Brief Background

On August 12, 2021, Philadelphia’s Board of Health promulgated two new emergency regulations to address the most recent surge of COVID-19 infections and hospitalizations.

The first emergency regulation adopted and modified Philadelphia’s June 15, 2021, “Emergency Order Establishing Safety Measures for Full Reopening to Prevent the Spread of the 2019 Novel Coronavirus (COVID19),” as amended, to require masks in all indoor business settings, with certain exceptions. Importantly, and as a reminder, these indoor masking requirements remain in effect as of this Alert’s publication.

The second emergency regulation required that, by October 15, 2021, all covered healthcare personnel and all university/college staff, students and faculty be vaccinated against COVID-19 unless the individual qualified for an exemption. Originally, the Board of Health gave healthcare institutions, colleges and universities about two months to prepare for the new vaccination requirements.

New Vaccination Requirements

Under the regulation, an individual is considered fully vaccinated when two weeks have elapsed since the individual received the final dose of a COVID-19 vaccine as recommended by the Food and Drug Administration or World Health Organization.

Covered Healthcare Personnel

Per the regulation, once in effect, no “Healthcare Institution,” which is defined broadly, shall employ, contract with or otherwise utilize the services of “Covered Healthcare Personnel” (which broadly includes any individual working, learning or volunteering in a building where patients and/or visitors are present, regardless of whether the individual has direct patient contact and “Healthcare Workers”) unless such personnel (i) has been fully vaccinated or (ii) receives a religious or medical exemption and complies with one or more accommodations adopted by the Healthcare Institution. Likewise, no Healthcare Worker, as defined by the emergency regulation, may work at a Healthcare Institution or provide “Healthcare Related Services” to a patient or client in Philadelphia unless such Healthcare Worker (i) has been fully vaccinated or (ii) has been granted a religious or medical exemption and documents ongoing compliance with one or more of the accommodations set forth in the emergency regulation. These requirements exclude individuals who work or volunteer completely through telecommunication devices.

The emergency regulation specifies that Healthcare Institutions “shall grant” exemptions if an individual qualifies for them and agrees to abide by the accommodation(s) in writing. More specifically, if an individual has a religious or medical exemption, the Healthcare Institution must provide one or more of the following accommodations:

  1. Requiring exempt individuals (including an exempt self-employed healthcare worker) to submit to either a PCR or antigen test at least twice per week, timed appropriately under the circumstances; or
  2. If feasible, allowing an exempt individual to engage with the Healthcare Institution through wholly remote means.

Higher Education

Once the emergency regulation is in effect, no university, college or junior college shall employ, contract with, otherwise utilize the services of or allow on campus for classes in an indoor setting any individual who works, volunteers or attends one or more classes or other activities on campus (and who has in-person contact with one or more other such individuals) unless such individual (i) has been fully vaccinated or (ii) has obtained a religious or medical exemption. These requirements exclude individuals who work or attend classes (or other activities) completely through telecommunication devices.

As with Healthcare Institutions, “Higher Education Institutions” “shall grant” exemptions to individuals who qualify for them and provide accommodations. However, the options for approved accommodations are different, and include the following:

  1. Requiring exempt individuals to submit to a PCR test for COVID-19 at least weekly or an antigen test for COVID-19 at least twice per week, timed appropriately under the circumstances;
  2. If the Higher Education Institution has 90 percent or more of its covered individuals fully vaccinated, requiring exempt individuals to double mask indoors and remain at least 6 feet from others at all times, whether on campus or engaged in an activity affiliated with the school off campus (double masking means wearing a cloth mask tightly fitted over a properly fitted surgical mask or a well fitted respirator equivalent to an N95); or
  3. If feasible, allowing an exempt individual to engage with the school through wholly remote means.

Importantly, this vaccination requirement explicitly applies to contractors on college and university campuses, though, according to guidance issued August 13, 2021, the contracting agencies will be responsible for maintaining vaccination and testing records.

Deadline Extensions

On October 6, 2021, Philadelphia issued the following extensions to comply with the vaccine mandate:

Friday, October 15, 2021: All healthcare staff in hospitals and long-term care facilities, and everyone in higher education, need at least one dose of a COVID-19 vaccine and regular testing based on their setting.

Friday, October 22, 2021: All other healthcare workers, except for those in hospitals or long-term care facilities, need at least one dose of a COVID-19 vaccine and to be tested twice per week using either antigen or PCR testing.

Monday, November 15, 2021: All healthcare staff in hospitals and long-term care facilities, and everyone in higher education, need to have completed their vaccine series.

Monday, November 22, 2021: All other healthcare workers, except for those in hospitals or long-term care facilities, need to have completed their vaccine series.

Note that these extensions are circumstance-dependent and contain interim testing requirements.

What This Means for Philadelphia Employers

The issues surrounding COVID-19 vaccine requirements are complex, particularly for employers operating in Philadelphia, as well as other jurisdictions. Not only must an employer consider any state and local vaccination requirements, but also President Joe Biden’s executive orders for federal employees and federal contractors and the Occupational Safety and Health Administration’s (OSHA) Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, COVID-19 Healthcare Emergency Temporary Standard, as well as the pending emergency temporary standard for employers with 100 or more employees, which was recently submitted by OSHA to the White House’s regulatory office for final review. Adding to this complexity, in at least two states, Montana and Texas, there are prohibitions against private employers mandating COVID-19 vaccines, and more states may potentially follow suit.

The complexities do not just lie in potential jurisdictional differences; there is also the interplay between vaccine mandates (whether legally required or by the company’s choice) and laws that provide accommodations for certain qualified individuals, typically on the basis of religious belief or disability.

Overall, employers need to tread carefully while considering and balancing various interests and requirements as many of these issues are novel, and future regulations may affect the policy decisions being implemented today. We strongly encourage employers to consult with counsel in analyzing the implications of these additional legal requirements to take into account the employer’s particular circumstances and needs.