While the working world stepped into the new year, and as federal OSHA awaited a January 7, 2022 oral argument before the United States Supreme Court regarding its COVID-19 Vaccination and Testing Emergency Standard (ETS), on January 3, 2022, Minnesota OSHA (MNOSHA) adopted the ETS by reference in the State Register.
For Minnesota employers with 100 or more employees this means they must develop and implement a COVID-19 vaccination and testing policy by January 10, 2022. (MNOSHA indicated it will not issue citations for noncompliance with any requirements of the ETS before Jan. 10.) Further, employers must make the testing requirements of their policies operational by February 9, 2022. (MNOSHA has indicated it will not issue citations for noncompliance with the standard's testing requirements before Feb. 9, “as long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”) If the policy includes an exception allowing employees to forgo vaccination, it must require that unvaccinated employees undergo weekly COVID-19 testing and wear a face covering at work.
MNDOL advised in its posting that, similar to the ETS, its standard does not apply to workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractor (the federal contractor mandate) or the CMS Mandate for healthcare services or health care support services. It also does not apply to employees who do not report to a workplace where other individuals, such as coworkers or customers, are present, or to employees who work from home or work exclusively outdoors.
The ETS also requires employers to support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following these doses.
As the federal ETS also provides, Minnesota employers must require employees to give notice if they contract COVID-19 and must remove those employees from the workplace until they meet criteria for returning to work. MNDOL did not indicate if that criteria is governed by the ETS, which references the CDC’s February 2021 guidance on return-to-work periods, or whether it will follow the CDC’s more recent recommendations providing shorter quarantine and return-to-work timeframes. Neither MNOSHA nor federal OSHA has affirmatively said anything about the new CDC guidance, though a few other states have indicated they will follow the CDC’s new guidance and shorter quarantine periods.
Finally, the ETS requires employers to provide information regarding the vaccination and testing policy to employees in a language and at a literacy level the employees understand; to report work-related COVID-19 fatalities and hospitalizations to OSHA (within 8 hours for death and within 24 hours for hospitalization); and to keep results from employee testing and copies of employees’ proof of vaccination while the ETS is in effect.
It is unclear what effect on MNOSHA’s adoption of the federal ETS will occur if action by the U.S. Supreme Court either results in a continuing stay against the ETS or strikes it down entirely. As MNOSHA’s adoption of the ETS is “by reference,” it would appear that without something valid to refer to, the ETS as adopted by MNOSHA would be void.
We will continue to keep you apprised of significant developments regarding the federal ETS and any ramifications for states that have adopted it.
