Today, January 10, 2022, MN-OSHA will begin enforcing the majority of OSHA’s 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+ employees to take several steps by January 10, 2022, including implementing a COVID-19 policy and requiring unvaccinated workers to wear a mask in most situations. The portion of the rule that requires employees to either be vaccinated or submit to weekly COVID-19 testing will not be enforced by OSHA until February 9, 2022.
After it was issued on November 5, the OSHA ETS Rule was immediately “stayed” by the Fifth Circuit. Then, the Sixth Circuit “lifted” the stay on December 17, 2021. Immediately after the decision, OSHA announced enforcement deadlines of January 10 for the bulk of the OSHA ETS Rule and February 9 for the vaccination-or-testing portion of the rule.
On January 7, the U.S. Supreme Court heard oral arguments as to whether the court should reinstate the injunction preventing OSHA from enforcing its rule. It is unknown how or when the Court will rule. Nevertheless, as of today, the Court has not issued any order preventing OSHA from enforcing its rule. Thus, for the time being, nothing prevents OSHA from beginning to enforce the OSHA ETS Rule.
Who Is Covered?
First, the OSHA ETS Rule applies only to employers with 100 or more employees. The 100-employee threshold is “enterprise wide” (and not location-by-location) and includes full-time, part-time, and seasonal employees. But, for employers with fewer than 100 employees, the OSHA ETS Rule does not apply.
Second, in states like Minnesota with “state OSHA plans,” it is the state OSHA agency that is responsible for adopting and enforcing the safety standards. After the “stay” was lifted, OSHA gave state agencies until January 24 to either (a) adopt the federal OSHA ETS Rule or (b) adopt alternative regulations that are “at least as” effective as the federal OSHA ETS Rule. The states with “state OSHA plans” that apply to private-sector workers, include: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming.
As we previously reported, MN-OSHA adopted the federal OSHA ETS Rule with enforcement deadlines that mirror federal OSHA (i.e., January 10 and February 9). Thus, covered employers in Minnesota must comply with the January 10 and February 9 deadlines.
Likewise, covered employers in states without a state-run OSHA plan, including Iowa, North Dakota, South Dakota, and Wisconsin, must comply with the OSHA ETS Rule in accordance with the January 10 and February 9 deadlines. In these states, federal OSHA is responsible for enforcing workplace safety standards.
What Do I Need to Do?
If you are covered by the OSHA ETS Rule, then you need to take the following steps beginning today (January 10):
- Establish a written COVID-19 vaccination policy that includes information on testing and face coverings;
- Obtain vaccination records from employees;
- Provide certain information to employees on COVID-19 vaccines and the requirements of the OSHA ETS Rule;
- Provide up to 4 hours of paid time off for employees to receive the COVID-19 vaccine during working time and up to 16 hours of paid time off to recover from side effects experienced following any COVID-19 vaccine dose;
- Require employees to promptly notify their employer of a positive COVID-19 test or COVID-19 diagnosis and promptly remove the employee from the workplace; and
- Comply with certain notice requirements when there is a positive COVID-19 case and reporting to OSHA when there is an employee work-related COVID-19 fatality or hospitalization.
By February 9, covered employers must ensure that all unvaccinated workers provide the employer with a negative COVID-19 test within the past seven days (if they are on a worksite where they come into contact with other workers).
To assist employers with compliance, Felhaber Larson’s Labor & Employment Team has a sample COVID-19 Policy and employee communication regarding the OSHA ETS Rule. Contact anyone from Felhaber Larson’s Labor & Employment Team if you would like to receive copies of the relevant documents.
What about the Supreme Court?
It is still possible that the Supreme Court will enjoin OSHA from enforcing the OSHA ETS Rule. During oral arguments last week, a majority of the justices appeared to support a temporary order preventing OSHA from enforcing its rule while the Court issued its decision. Nevertheless, as of today, the Court has not issued any such order preventing OSHA from enforcing its rule. As a result, employers must prepare as if OSHA will begin enforcing the OSHA ETS Rule.
Unless or until the Supreme Court acts, nothing prevents OSHA from enforcing the OSHA ETS Rule against employers with 100 or more employees. As a result, covered employers should begin complying with the OSHA ETS Rule unless or until instructed otherwise by the Supreme Court.
We will continue to monitor this situation as it develops.