The U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) on Dec. 17. The ETS, which was published in the Federal Register on Nov. 5, requires employers with at least 100 employees to mandate that employees get vaccinated against COVID-19 or mandate that employees get vaccinated or submit to weekly testing and wear face coverings at work.

As a state plan, Minnesota OSHA (MNOSHA) must adopt this standard as written or an equivalent standard that is “as effective as” this standard to protect workers in Minnesota. To meet these obligations, MNOSHA is preparing to adopt the ETS by reference as soon as Jan. 3, 2022. The ETS wil be effective immediately in Minnesota as of the date of its publication in the State Register.

MNOSHA’s state plan applies to all public and private employers in the state with limited exceptions. Federal OSHA maintains jurisdiction over federal employees working in Minnesota.

Effective dates

After it is adopted by publication in the State Register, the rule will be effective immediately. To account for any uncertainty created by the stay, federal OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. MNOSHA will exercise similar enforcement discretion with respect to the compliance dates and look to follow OSHA’s timeline. MNOSHA will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

The U.S. Court of Appeals decision dissolving the stay of the ETS has been appealed to the U.S. Supreme Court. MNOSHA will react accordingly to further judicial determination as the current litigation makes its way through the process.

Resources

To learn more about the ETS requirements, attend one of MNOSHA’s newly added informational webinars Jan. 4, 11 a.m. to noon, or Jan. 7, 10 to 11 a.m. View registration information at http://www.dli.mn.gov/updates.

Federal OSHA’s ETS is currently up for public inspection and is accessible online. OSHA has also updated its webpage with access to the regulatory text, fact sheets, a webinar, sample policies, frequently asked questions and links to related U.S. Department of Labor and Centers for Disease Control and Prevention resources.