As we stated in our Dec. 30 blog post and email sent to CGMC members, the federal Occupational Safety and Health Administration (OSHA) issued an 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 unvaccinated employees.
On Jan. 3, Minnesota OSHA (MNOSHA), a subdivision of Minnesota Department of Labor and Industry, adopted OSHA’s ETS by reference, meaning that MNOSHA will enforce a standard identical to the ETS in its entirety as a proposed final standard within the state of Minnesota. The ETS took effect immediately on Jan. 3, upon MNOSHA’s publication in the State Register.
The U.S. Department of Labor has indicated OSHA will not issue citations for noncompliance with any of the requirements until Jan. 10, and it will not issue citations for the testing requirements until Feb. 9, so long as employers are making “good faith” efforts to implement the rules. MNOSHA has stated it will follow the same enforcement discretion with Minnesota employers subject to the ETS.
Various parties are challenging to the U.S. Supreme Court the enforceability of the ETS and requesting that it be stayed (i.e., suspended) until the Court determines the enforceability of the ETS. The U.S. Supreme Court will hear oral arguments on the enforceability of the ETS and request for stay of it on Jan. 7. It is unclear when the Court will issue its decision, but it will likely decide within days if the stay will be granted. If the Court issues a stay, the ETS — both on the federal and state levels — will not be in effect while the stay is in place and the Court will determine the permanent enforceability of it afterwards. Or, the Court could make its decision on whether the ETS is enforceable at all without granting a stay.
We have received numerous questions on whether cities will be required to pay for employee COVID-19 testing and their wages for being tested under the ETS. Early next week, we will provide updated guidance on this issue, along with more information on penalties that cities may face for noncompliance and labor bargaining issues that have arisen.
CGMC has updated its template policies, communications, and forms for implementing the ETS, which are available at greatermncities.org/resources/covid-19/.
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.
