As we previously reported, on December 17, the Sixth Circuit dissolved the “stay” that prevented the federal Occupational Safety and Health Administration (“OSHA”) from enforcing its Emergency Temporary Standard relating to COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (“OSHA ETS Rule”). The OSHA ETS Rule requires employers with 100 or more employees to implement several requirements, including a COVID-19 vaccination policy and a requirement that employees either (a) be vaccinated or (b) submit to weekly COVID-19 testing. Our outline of the OSHA ETS Rule’s requirements is available here.
Shortly thereafter, OSHA announced that it planned to begin enforcing the OSHA ETS Rule on January 10, except that the vaccine-or-testing portion of the rule would not be enforced until February 9. Remember, too, 22 states (including Minnesota) have state law plans that, under OSHA, have 30 days to either: (a) adopt the federal standard or (b) adopt a standard that “at least as effective” as the federal standard.
Recently, MN-OSHA announced that, on January 3, 2022, it intends to adopt the OSHA ETS Rule with the same enforcement dates (January 10 and February 9) as federal OSHA. Here is the relevant portion of MN-OSHA’s announcement:
On Dec. 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS. MNOSHA now plans to adopt the ETS by reference as soon as Jan. 3, 2022. The U.S. Department of Labor has indicated OSHA will not issue citations for noncompliance with any of the requirements until Jan. 10, 2022, and it will not issue citations for the testing requirements until Feb. 9, 2022, so long as businesses are making “good faith” efforts to implement the rules. To account for any uncertainty created by the stay, MNOSHA will exercise similar enforcement discretion with respect to the compliance dates and will follow federal OSHA’s timeline.
It does not appear that MN-OSHA will alter the federal standard or adopt any additional restrictions on covered employers (i.e., those with 100+ employees).
The next question, of course, is whether MN-OSHA will push ahead with enforcement if the U.S. Supreme Court issues a decision enjoining enforcement of the federal rule. According to MN-OSHA’s announcement, it is aware of the appeal and it “will react accordingly to further judicial determination as the current litigation makes its way through the process.” Thus, no clear answer yet, but it is possible.
Bottom Line
Like federal OSHA, MN-OSHA intends to move forward with the OSHA ETS Rule, including the requirement for vaccination or weekly COVID-19 testing. Thus, employers need to begin preparing for the January 10 and February 9 deadlines.
As we previously reported, the U.S. Supreme Court will hold oral arguments regarding the OSHA ETS Rule on Friday, January 7, but it is unknown whether the Court will issue any decision before the OSHA and MN-OSHA enforcement deadlines. Thus, a “wait-and-see” approach is likely not possible for covered employers.
We will continue to monitor this situation as it develops.