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Minnesota’s Occupational Safety Administration (MNOSHA) adopted the federal Occupational Safety Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) on January 3, 2022, and began enforcing the rules on January 10, 2022. On January 13, 2022, the Supreme Court of the United stayed the enforcement of the ETS and remanded the case to the Sixth Circuit Court of Appeals, which will now consider the merits of the case.

In response to the stay, MNOSHA suspended enforcement of the ETS and provided the following notice:

In an order issued Jan. 13, 2022, the United States Supreme Court stayed enforcement of federal OSHA’s COVID-19 Vaccination and Testing ETS pending the disposition of the petitions for review in the Court of Appeals for the Sixth Circuit. In light of the stay, MNOSHA will suspend enforcement of the ETS pending future developments.

While MNOSHA has suspended enforcement of the ETS, it “strongly encourages all employers to continue to implement the requirements of the ETS to protect employees from a hazard that too often causes death or serious physical harm.” Although MNOSHA “strongly encourages” employers to implement the ETS, doing so is completely voluntary at this time.

MNOSHA will nevertheless continue to “enforce all employers’ obligations under the general duty clause and its general standards, including the Personal Protective Equipment (PPE) and Respiratory Protection Standards.”

In the days that followed MNOSHA’s adoption of the ETS, Minnesota employers had taken steps to show good-faith efforts to implement the ETS rules. Employers may choose to pause  these efforts for the time being in light of the stay and MNOSHA’s decision to suspend enforcement of the ETS.

The case is now back in the Sixth Circuit’s hands. Depending on the briefing and argument schedule, the Sixth Circuit may not issue a decision before the ETS expires on May 5, 2022. A decision by the Sixth Circuit may ultimately land back at the Supreme Court of the United States.

We will monitor this case as it proceeds on the merits and will provide additional guidance once a decision is issued.

For more information on how the Supreme Court’s decision affects employers, please join Ogletree Deakins’ upcoming webinar, “SCOTUS Hits Pause on OSHA COVID-19 Vaccination and Testing ETS: What’s Next for Employers?,” which will take place on Wednesday, January 19, 2022, from 2:00 p.m. to 3:00 p.m. EST. The speakers, Melissa A. Bailey and John F. Martin, will discuss the key takeaways from the decision and the status of OSHA’s COVID-19 ETS. Register here.

Ogletree Deakins will continue to monitor and report developments with respect to the COVID-19 pandemic and will post updates on the firm’s Minnesota and Workplace Safety and Health blogs and in the Coronavirus (COVID-19) Resource Center as additional information becomes available.


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