Philly Issues Mandate for Indoor Dining Workers
On December 17, 2021, the Philadelphia Board of Health issued an Order mandating vaccines for individuals working at an indoor dining location. The Order is expansive and includes requirements for large gatherings (ie- arenas/stadiums), residential gatherings and requirements for patrons of Indoor Dining Locations.
This blog focuses on the requirements for the individuals who perform work in an Indoor Dining Location (employees, W-2, Vendors etc.).
WHAT IS AN “INDOOR DINING LOCATION?”
This Order applies to, “[a]ny location, whether open to the public or private, including personal residences, where food or drink is sold or served indoors for consumption onsite.” In other words, this Order applies to all restaurants in Philadelphia.
The following establishments and locations are excepted from this Order:
Location where only drinking water is served/permitted;
Early Childhood Education Schools;
K-12 Schools;
Healthcare Facilities;
Any location where food/drink is consumed as part of a religious practice;
A location where food is sold by vending machine only and no there is no designated indoor eating area;
Any portion of a location that is outdoors, where two or more sides are fully open to the outside. (NOTE: For these locations, any entrance into any “associated indoor food or drink service/eating area must be actively monitored to ensure compliance with the Mandate.)
Grocery Stores
Food Courts
Markets
Airport Facilities;
Food service locations that provide free food to those who may be homeless or in urgent need of food;
WHO HAS TO FOLLOW THIS ORDER?
If your business is an Indoor Dining Location (“IDL”), then this Order applies to Indoor Dining Workers. An Indoor Dining Worker is: any individual who works in your location in any capacity. In other words, this Order applies to EVERYONE, whether they are 1099’s, W-2’s, vendors, subcontractors, temporary employees, third party staff workers, and anyone else who works at your location.
NOTE: The order explicitly states that the mandate does NOT apply to individuals who are present at the IDL for less than 15 minutes for the following purposes:
Picking up food to take out;
Using the restroom;
Or for a similarly short and transitory purpose.
In these transitory situations, the individual must be masked at all times.
THE MANDATE
The Mandate reads as follows:
No business serving or providing food at an Indoor Dining Location shall employ, contract with, or otherwise utilize the services of an Indoor Dining Worker…unless the Indoor Dining Worker has been (1) fully-vaccinated or (2) has received an exemption.
WHAT IS THE DEADLINE FOR INDOOR DINING WORKERS TO BE VACCINATED?
All Indoor Dining Workers must have one dose of a vaccine on or before January 3, 2022. All Indoor Dining Workers must be fully-vaccinated by February 3, 2022.
EXEMPTIONS
Indoor Dining Locations can grant two types of exemptions (1) Medical or (2) Religious. The Order lays out what a worker must submit in order to obtain an exemption.
Medical Exemption
In order to request a medical exemption, the Indoor Dining Worker must submit a certification from a Licensed Healthcare Provider (physician, Nurse Practitioner, Physician’s Assistant). The Healthcare Provider must have conducted an in-person physical examination of the IDW on at least one occasion. The Healthcare Provider must certify that: (1) the exemption applies to the Indoor Dining Worker and (2) state the specific reason that the vaccine is contraindicated for the Indoor Dining Worker.
Religious Exemption
In order to obtain a Religious exemption, the IDW must certify in writing that they have a sincerely held religious belief that precludes them from receiving the COVID-19 vaccination.
***Both Certifications (medical and religious) are subject to the penalties under Section 1-108 of the Philadelphia Code. The Certifications must include the following language:
I hereby certify that the statements contained herein are true and correct to the best of my knowledge and belief. I understand that if I knowingly make any false statement herein, I am subject to such penalties as may be prescribed by statute or ordinance.
HOW TO HANDLE EXEMPT INDOOR DINING WORKERS
For every worker who is not vaccinated, the establishment must ensure that the individual is: (1) tested on at least a weekly basis, and (2) adopt one of the two suggested accommodations. (NOTE: See my previous blog on “Who Pays for What.”)
The first suggested accommodation is mandatory double masking. The second suggested accommodation is allowing the individual to work virtually.
RECORD KEEPING
Entities must maintain the following documents:
Vaccination status of each Indoor Dining Worker
All exemption requests from Indoor Dining Workers
All certifications submitted for any exemption
Documentation of whether or not such exemption request was granted and why
The accommodation(s) granted
Records of ongoing COVID-19 testing
Restaurants and other Indoor Dining Locations should consult with counsel with any questions or concerns regarding this order. Violations of this December 17, 2021 Order carry penalties up to $2,000 per day.