May 20, 2022

Volume XII, Number 140

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Minnesota OSHA Adopts Federal OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard

On January 3, 2022, Minnesota’s Occupational Safety and Health Administration (MNOSHA) adopted the federal Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) published on November 5, 2021. The ETS applies to large employers (i.e., employers with 100 or more employees) and requires, among other things, that covered employers develop, implement, and enforce mandatory COVID-19 vaccination policies, with an exception for employers that adopt policies requiring employees to be vaccinated or undergo regular COVID-19 testing and wear face coverings at work in lieu of vaccination.

MNOSHA also adopted federal OSHA’s ETS enforcement guidance. Following federal OSHA’s timeline, MNOSHA will exercise enforcement discretion and not issue citations for noncompliance with any ETS requirements until January 10, 2022, and “it will not issue citations for the testing requirements until February 9, 2022, so long as businesses are making ‘good faith’ efforts to implement the rules.”

Minnesota’s adoption of the ETS comes on the eve of oral argument before the Supreme Court of the United States on January 7, 2022, regarding whether a stay of enforcement of the ETS should be in place. The Supreme Court’s consideration of the issue follows an appeal of the U.S. Court of Appeals for the Sixth Circuit’s decision on December 17, 2021, dissolving the Fifth Circuit’s earlier decision staying enforcement of the ETS.

Employers may want to take steps to comply with the ETS and, at minimum, be in position to show “‘good faith’ efforts” to implement the rules to avoid potential citations coming out of this period of enforcement discretion and pending further action by the Supreme Court.

We will monitor the Supreme Court’s consideration of these issues and provide additional guidance once a decision is issued.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 6
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About this Author

Hal A. Shillingstad Employment Litigation Attorney Ogletree Deakins Minneapolis, MN & Sioux Falls
Shareholder

Hal Shillingstad is one of the founding shareholders of the Minneapolis Office. He has extensive experience in single plaintiff and collective actions involving employment law, commercial litigation, products liability and mass tort litigation nationwide. He also counsels clients on crisis management as part of the Firm’s Workplace Safety and Health Group in matters involving accidents, fires, and explosions at manufacturing and production facilities and assists clients in enhancing workplace safety.

Labor and Employment Law—Hal has successfully defended employers by obtaining...

612-336-6869
Brent Kettelkamp, Labor and Employment Attorney, Ogletree Deakins Law Firm
Associate

Brent is an associate in the Minneapolis office of Ogletree Deakins. Brent’s practice is devoted to representing both large and small businesses in employment litigation and labor law matters. He has represented clients in all areas of employment law including, FMLA, ADA, employment discrimination claims, non-compete/non-solicitation, and other various employment-related disputes. Brent also has experience representing clients in commercial disputes including, breach of contract, construction-related claims, residential mortgage-backed securities, fraud/misrepresentation...

612-336-6850
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