On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration’s (“OSHA”) emergency temporary standard (“ETS”) was issued. As explained in our prior alerts, the ETS generally requires employers with 100 or more employees to mandate COVID-19 vaccinations or, alternatively, to allow non-vaccinated employees to test for COVID-19 on a weekly basis and wear a mask in the workplace: OSHA Publishes Rule Mandating Vaccines for Employers with 100 or More Employees.
The federal ETS is currently under review by the U.S. Supreme Court, with oral arguments to occur on January 7, 2022. It is unclear when the Court will issue a ruling on the matter. If the ETS is halted by the Court, we will release a corresponding update.
On January 3, 2022, Minnesota OSHA (MNOSHA) adopted the federal ETS by reference and the MN ETS is now in effect. MNOSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, as long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard. The Supreme Court ruling on the federal ETS may impact the MN ETS. We will keep you updated as developments occur.
Our employment law team is ready to advise regarding the MN ETS and has developed a sample policy for employers to use to implement the requirements of the rule. Please contact any of us to discuss your specific needs.