On Jan. 13, the U.S. Supreme Court stayed (i.e., suspended) the federal Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) obligating employers with 100 or more employees to require the COVID-19 vaccination for employees or, alternatively, weekly testing and masking for their unvaccinated employees. Minnesota OSHA (MNOSHA) adopted the ETS by reference on Jan. 3, making public employers with 100 or more employees bound by the ETS requirements, effective immediately, per the following Minnesota Administrative Rule:  

5205.0010 ADOPTION OF FEDERAL OCCUPATIONAL SAFETY AND HEALTH STANDARDS BY REFERENCE.

“Subpart 1. Title 29. The Minnesota Department of Labor and Industry Occupational Safety and Health Codes and rules are amended by incorporating and adopting by reference, and thereby making a part thereof, Title 29 of the Code of Federal Regulations as listed in subparts 1a to 7.”

Because MNOSHA adopted the federal ETS in its entirety, this means that it is also stayed for Minnesota employers, and thus no longer in effect for cities at this time.

The U.S. Supreme Court did not determine that the ETS is illegal and cannot go into effect ever; rather, it has temporarily suspended the ETS while the challenges to the rule continue in the U.S. Court of Appeals for the 6th Circuit. It is unlikely, however, that the ETS will ever be enforceable for the duration that OSHA desired it be enforceable. OSHA and/or MNOSHA, however, could attempt to draft revised regulations they feel may be deemed legal and enforceable, in which case there would be legal challenges to any such regulations.

We recommend the following template language when notifying employees of the U.S. Supreme Court’s decision and resulting effect on city vaccination and testing policies:

On January 13, 2022, the U.S. Supreme Court stayed (i.e., suspended) the federal OSHA Emergency Temporary Standard (ETS) regarding employee vaccinations, testing, and face coverings. This means that the ETS is also stayed for Minnesota employers, including the city, because MNOSHA adopted the federal ETS in its entirety. Because the city’s communications of [date], including a policy related to city employee vaccinations, testing, and face coverings was based on implementing the requirements of the ETS, the city will now suspend such communications and implementation of such pending further legal proceedings on the ETS. This means the city will not require compliance with nor will employees need to comply with the city’s communications, including the policy. We will provide any further updates. Employees will still be required to comply with any other city requirements related to maintaining a safe and healthy workplace.

If you intend to continue with implementation of the ETS-based policy, you should amend the above-notice to include language clarifying that the requirements remain. Cities still, however, should maintain and enforce other COVID-19-related policies and actions to maintain a safe and healthy workplace as required generally by MNOSHA law.

If you have collected any data from employees related to implementation of the ETS and your policy, you must still retain such data at this point.

If you need any assistance on these issues or any other labor employment advice, please contact labor and employment attorneys Brandon M. Fitzsimmons (bmfitzsimmons@flaherty-hood.com) or Christina C. Petsoulis (ccpetsoulis@flaherty-hood.com) of Flaherty & Hood, P.A.