Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Update: The Philadelphia Department of Health published has issued a regulation amending its August 11, 2021 order.
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On August 11, 2021, Philadelphia Mayor Jim Kenney and Acting Health Commissioner Cheryl Bettigole issued an Order effective immediately that requires individuals to wear a face mask (with certain exceptions) in any indoor setting and at certain large outdoor events in Philadelphia, unless all present are required to be vaccinated and there is a reasonable process to confirm vaccination status of all present. This new Order extends and amends the prior face mask requirement in Section 2 of the city’s June 2021 Reopening Order that applied only to individuals on public transportation or in healthcare settings, congregate facilities and indoors at schools, camps and other childcare settings. The city’s press release explained that this new Order is intended to slow the spread of the dangerous Delta variant.
Face Mask Requirement for Indoor Settings and Certain Large Outdoor Events
Under the new Order, individuals must wear face masks or other face coverings recommended by the Center for Disease Control and Prevention (CDC) in the following additional locations, subject to the exceptions specified below that are carried over from the June 2021 Reopening Order:
- Indoor Settings: Face masks are required in any indoor setting, “unless a business operating at the setting requires everyone on site to be vaccinated and has instituted a reasonable procedure for confirming vaccination status of staff, customers and any other individuals present.”
- “Indoor” is defined as “a location enclosed by three or more walls or other non-permeable barriers and an overhead covering, such as a roof or a tent top.” “Indoor” includes a tent with one side open, but not a tent that is fully open on two or more sides.
- “Reasonable procedure for confirming vaccination status” is undefined. The city will be issuing guidance regarding the acceptable methods for confirming vaccination status and recordkeeping requirements. Based on the poster the city has posted on its website, it appears that proof of vaccination (rather than an attestation) may be required. The city’s website has resources to assist those who have lost their COVID-19 vaccine immunization card or otherwise need a copy of their immunization history.
- *See Update regarding the regulation amending the August 11, 2021 order, and providing that the exception to the mask requirement if all present are required to be vaccinated and there is a reasonable procedure to confirm this does not apply to essential businesses, such as grocery stores, pharmacies, doctor’s offices, emergency or urgent care medical facilities.
- Large Outdoor Events That Are Not Exclusively Seated: Face masks are required at any outdoor event with 1,000 or more attendees, unless (i) the event is exclusively seated; or (ii) “the business operating the event requires everyone on site to be vaccinated and has instituted a reasonable procedure for confirming vaccination status of staff, attendees and anyone present,” or (iii) the city approves a safety plan for the event providing otherwise (e.g., in connection with review of an application made to the Office of Special Events or Parks and Recreation).
The Order is clear that if the vaccination conditions specified in the Order are satisfied with respect to indoor settings or large outdoor events, face masks are not required; however, individuals have the right to wear face masks and the Order does not prohibit a business or event from requiring face masks.
The face masks must be worn properly, in a manner that fully covers the mouth and nose, consistent with applicable guidance, at all times in these locations.
Eight Exceptions to The Face Mask Requirement
The Order provides that the face mask requirement does not apply to individuals in the following cases:
- They Are Under 2 Years Old;
- A Physical Disability Prevents Wearing/Removing Mask: They have a physical disability that prevents them from easily wearing or removing a face covering;
- Deafness: They are deaf and use facial and mouth movements as part of communication;
- Medical Advice That a Mask Poses a Health Risk: They were advised by a medical professional that wearing a face covering may pose a risk to that individual for health-related reasons;
- Breathing Trouble or Inability to Remove Mask Oneself: They have trouble breathing or are unconscious, incapacitated or otherwise unable to remove the face covering without assistance;
- Seated and Eating/Drinking: They are eating or drinking, provided that the eating or drinking takes place ONLY when seated; *See Update regarding the regulation amending the August 11, 2021 order, and extending this exception to eating or drinking when seated or standing at a table with four or fewer people.
- Alone in Separate Office: They are alone in an office or similar location that is completely separated from others by floor to ceiling physical barriers; or
These same eight exceptions continue to apply to individuals in healthcare settings; congregate facilities; and indoors at schools, camps and other childcare settings. As to public transportation, the city continues to defer to the CDC Orders governing face mask requirements.
The city is expected to issue guidance on required recordkeeping for exceptions granted to the face mask requirement.
Other Requirements in the June 15, 2021 Reopening Order Remain in Effect
The other requirements set forth in the city’s June 15, 2021 Reopening Order continue to apply, including the contact tracing, isolation and quarantine requirements upon exposure to a COVID-19 case.
To recap, in the event of exposure to a COVID-19 case, employers must conduct contact tracing by identifying workers and customers, to the extent possible, who were in close contact (within 6 feet for at least 15 minutes) with a COVID-19 positive case from 48 hours before symptom onset (or 48 hours before the test date if asymptomatic) to the time when the COVID-19 positive case isolated. Upon request, the close contacts’ names and contact information must be provided to the Philadelphia Department of Health.
Employers must permit those diagnosed with or who tested positive for COVID-19 (and their close contacts) to be absent from in-person work during the isolation period set forth in guidance from the Philadelphia Department of Health or a health care provider, and the affected workers shall isolate following this guidance. For close contacts who are fully vaccinated and without symptoms, the CDC advises that quarantine is not required, but recommends getting tested 3-5 days after exposure and wearing a mask indoors in public for 14 days or until receipt of a negative test result.
Required Signage and Enforcement and Remedies
Business owners and operators are required to prominently display signage to the extent required by the Department of Public Health. The city’s Department of Health has published a poster for businesses to post at entrances to explain that “all businesses and institutions in Philadelphia must require proof of vaccination to enter or require mask use by all staff and patrons,” as well as other signage in multiple languages.
To ensure compliance, business owners and operators are required to allow inspection of ongoing operations as a condition of operation. Failure to comply with the June 15, 2021 Reopening Order and this new Order may result in cessation of operations, the imposition of penalties, fines, license suspensions and other remedies. This includes the fines and penalties set forth in the April 29, 2020 Order Pertaining to Fines and Penalties of $2,000 per violation for businesses and $500 per violation for individuals.
City Employees: Existing Employees Must Double Mask if Not Fully Vaccinated and New Employees Must be Vaccinated as a Condition of Employment
The city is leading by example with its own workforce, and announced that to ensure that all staff are protected as much as possible from severe COVID-19 infection and death, as of September 1, 2021, new employees hired must be fully vaccinated as a condition of their employment, and existing employees must provide proof of vaccination or double mask (a cloth mask over a disposable or surgical mask) at all times while working on site. This follows a similar directive issued by Governor Wolf as to the over 25,000 employees of the Commonwealth working in prisons and state health care and congregate care facilities.
The new requirement to wear face masks in indoor settings and certain large outdoor events if all present are not vaccinated imposes significant obligations on businesses to ensure that both employees and other individuals on their premises comply.
Businesses should prominently post the city’s signage that explains that the new requirements are a city directive, in order to help defuse objections by patrons.
Many businesses may not have current information as to whether their employees or contingent workers are vaccinated against COVID-19. Covered businesses should promptly take steps to determine vaccination status, whether by having individuals submit copies of their CDC vaccine cards or by self-certifying their status. Such records should be maintained confidentially and separate from personnel files. Some workers may choose to continue wearing masks even if they have been vaccinated and should not be discouraged from exercising this choice.
Businesses that are not able to meet the 100% vaccination condition must prepare to consider requests not to wear face masks from employees, customers and others. This will require instructing those tasked with these interactions regarding the eight exceptions specified in the city’s Order. The city is expected to issue guidance for recordkeeping obligations in this regard. Meanwhile, for employees, this could be a notation kept in their medical file as to the date and basis for the face mask exception and who assessed it, as well as any other accommodations (such as alternative face mask styles) that were considered. For customers and others entering the establishment or event, it may make most sense to use the sign-in sheet already being used for contact tracing to also note the basis for any exception to the face mask requirement and the name of the employee who evaluated it. There may be a need to keep this record confidential depending on the reason for the exception and the extent of the documentation.
Businesses seeking to increase workplace vaccination rates to avoid the new face mask requirements should consider at least the following issues:
- If all employees on site are already vaccinated, how should the business manage restricting access to customers and others who are not vaccinated?
- If any unvaccinated individuals enter, will it be considered compliant if everyone masks for the duration of their stay (or some additional time period) and then reverts to being unmasked?
- Even if everyone on site is vaccinated, should face masks still be required to some extent, given the contagiousness of the Delta variant?
- If all employees are not vaccinated, are there additional incentives that could be used to achieve a 100% vaccinated workforce?
- Should the employer allow any unvaccinated employees to work on site at all or only at certain times when others will have to wear masks and should other safety precautions be taken? What will the city guidance permit in this regard?
- Should the employer make vaccination a condition of employment for new hires and/or existing employees?
- If so, how should employers evaluate requests for accommodation to be relieved from the vaccination requirement due to a disability or religious objection? Are there possible reasonable accommodations depending on the essential job functions of the employee? Would such accommodations be an undue burden, and/or pose a direct threat to others or the individual seeking the accommodation? Would transfer to another position resolve the issue? Is unpaid leave a viable accommodation?
- What procedure for confirmation of vaccination status will meet the city’s requirements in forthcoming guidance?
- Will the confirmation involve collecting medical records that are subject to privacy and confidentiality obligations?
More guidance will be forthcoming to clarify some of the issues raised by the new Order. Meanwhile, the message from the city is clear—our best tools for slowing the spread of COVID-19 while keeping our businesses operating are vaccination and face masks.