Minnesota OSHA Adopts Exempt Rule Requiring Vaccination or Weekly Testing

Yesterday, January 3, 2022, the Minnesota Department of Labor and Industry, Occupational Health and Safety Division (MN/OSHA) adopted a state-specific Exempt Rule (the “ER”) which adopts verbatim the federal OSHA COVID-19 vaccination or testing Emergency Temporary Standard (the “ETS”). Effective immediately, an employer with 100 or more employees must implement the ETS for its Minnesota employees. MN/OSHA has stated it will commence enforcement action on January 10, 2022 but will not issue citations against employers who are “taking good faith efforts to comply” until February 9, 2022. Fines are $13,653 for each violation of the ER. Willful or repeated violations of the ER can subject employers to a fine of $136,532 (as Leech Tishman previously reported, the maximum fines could be increased to $700,000 if the federal Build Back Better Act is adopted in some fashion).

Minnesota is one of 26 states approved by federal OSHA to adopt and enforce their own workplace safety rules. While federal OSHA applies only to private employers, MN/OSHA applies to private, state and local government agencies. MN/OSHA has stated it will monitor any judicial action related impacting the ETS, but it has also stated it will continue to enforce and require employers to comply with obligations under the separate general duty clause to protect employees from COVID-19 hazards. Other states, including California, are considering adoption of some type of similar state-specific standard.

Since the ER is a state-specific standard, how the United States Supreme Court handles the ETS (oral argument is set for this Friday, January 7, 2022) may not prevent MN/OSHA, or any other state OSHA agency, from adopting or enforcing emergency rules and standards related to COVID-19. As we have previously reported, the Supreme Court has refused to enjoin any state-specific COVID-19 standard or vaccination rule from taking effect.

Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.

Philip Toomey is Chair of the firm’s national Employment & Labor Practice Group, where he also leads the Public Sector Employment Group. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.

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