Breckenridge Public Schools and Wilkin County — both employers of over 100 individuals — were required to adopt or update policies in accordance with the U.S. Department of Labor’s Occupational Safety and Health Administration emergency temporary standard (ETS) to prepare for upcoming compliance deadlines.
Under the ETS, every U.S. employer with over 100 employees faces two choices: adopt a vaccine mandate or allow county employees to remain unvaccinated so long as they undergo a weekly COVID-19 test and wear a mask while at work.
Monday, Jan. 10 marked the date employers must comply with all requirements of the ETS except for the mandatory weekly testing, according to an OSHA release. Employers must be making a “good faith effort” to come into compliance with the entirety of the ETS prior to the Wednesday, Feb. 9 compliance deadline for mandatory weekly testing.
Employers across the country have been waiting to see the results of litigation against the ETS. On Nov. 12, the U.S. Court of Appeals for the Fifth Circuit in New Orleans, Louisiana, affirmed its decision to put the ETS on hold, halting the mandate.
The U.S. Court of Appeals for the Sixth Circuit was chosen at random to determine whether it would continue, alter or lift the Fifth Circuit’s order of stay, Daily News previously reported.
On Dec. 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the fifth circuit’s stay, reinstating the ETS, and the case moved to the Supreme Court of the United States (SCOTUS).
The U.S. Department of Labor announced Dec. 18 “to account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS,” meaning the compliance dates were postponed to Jan. 10 and Feb. 9.
SCOTUS heard oral arguments regarding the ETS Friday, Jan. 7, and many employers hoped the high court would rule Monday. As of press time Wednesday, Jan. 12, the supreme court had not reached a decision to lift or stay the ETS.
The Breckenridge School Board held a special meeting Monday in which they unanimously adopted a policy that allows unvaccinated employees to remain unvaccinated so long as they wear face coverings and undergo weekly testing.
“We waited as long as we possibly can to be in compliance,” Breckenridge Public Schools Superintendent Brad Strand said during Monday’s school board meeting.
Strand said he met with staff Wednesday morning, Jan. 12 to discuss the process of gathering vaccination information. Strand said the meeting went well, and there was an understanding that the district must comply with federal law and move forward as if the ETS will be upheld.
The Wilkin County Board previously adopted a COVID-19 Vaccination, Testing and Face Covering policy regarding the emergency temporary standard at a Nov. 9 meeting in order to comply with OSHA’s initial Dec. 5 deadline for collecting vaccination information.
At a Tuesday, Jan. 11 meeting, the commissioners adopted an updated COVID-19 Vaccination, Testing and Face Covering policy with added language that states, “All employees who are not fully vaccinated as of January 11th, 2022 will be required to undergo regular COVID-19 testing and wear a face covering when in the workplace.”
Commissioners Dennis Larson, Lyle Hovland and Neal Folstad voted to adopt the changes, and commissioner Eric Klindt voted against the changes, with commissioner Jonathan Green absent. The same language was also added to the face covering portion of the COVID-19 Prevention Plan.
“So we’re going to identify people who are not vaccinated, by their choice, by whether it was medically-reasoned, for religious reasons, or just their choice of whether they want to be vaccinated or not, and you’re going to tell them that they have to wear a face mask into work and discriminate against their beliefs, whatever the reason is?” Klindt asked.
Klindt said he has talked to several employees who are adamantly against the vaccine-or-test mandate. Despite pushback, employers don’t have a choice, Hovland said.
OSHA can begin issuing citations for noncompliance on Jan. 10 for not masking and Feb. 9 for not completing weekly testing. The penalty per violation is $13,653 and the penalty per willful violation is $136,532, according to an OSHA memo.
“As much as we might dislike it, the county can’t afford to not comply,” Hovland said.