Supreme Court ruling, OSHA guidelines would mean changes

By John McLoone

City Administrator Dan Wietecha acknowledged “there are still some moving parts,” but the city was set to implement this week a COVID vaccine and testing policy for city employees.

An appeal that had oral arguments before the Supreme Court could change the action, but the council voted last Monday night with councilmember Laurie Braucks in opposition to the plan.

Wietecha said that the city was told by the Minnesota Occupational Safety and Health Administration that entities with more than 100 employees need to follow guidelines “to ensure their workforce is fully vaccinated or require those who remain unvaccinated to produce a negative test result on at least a weekly basis and be masked when working indoors.”

“The (Vaccination Testing) Emergency Temporary Standard had been delayed in the courts, but was cleared Dec. 17, 2021,” Wietecha said in a memorandum to the city council. “There is presently an appeal to the US Supreme Court, but at this time the ETS is the legal requirement. OSHA has indicated that it will not issue citations for noncompliance with any requirements of the ETS prior to Jan. 10 and will issue no citations for noncompliance with the testing requirements prior to Feb. 9 as long as we are exercising reasonable and good-faith efforts to come into compliance.”

Wietecha stressed that MN-OSHA or Supreme Court action could have an impact on whether the city requirement needs to continue, “but under present law we need to have a vaccine/testing policy in place and begin good faith implementation by Jan. 10.”

Under the new guidelines, the city won’t mandate vaccines.

“Employees have the option to either vaccinate or have weekly testing with a mask requirement,” said Wietecha.

The city was going to request vaccination status of all employees last week and set up a portal for employees to provide their documentation.

“Employees who do not reply as full vaccinated will be considered not vaccinated and subject to the weekly testing and mask requirements,” said Wietecha.

The city will consider an employee full vaccinated two weeks after the second shot of the Pfizer or Moderna vaccine or he single shot of the Johnson & Johnson vaccine.

All employee testing will be at city expense. “Testing will be done in-person and administered by employee supervisors,” said Wietecha.

The measure does involve an incentive for city employees to be vaccinated. The memo from Wietecha states, “Because of the ongoing work and staff time that will be involved in weekly tests, the costs of the tests themselves, and to encourage employees to be vaccinated, we are recommending adoption of an incentive that would provide a paid ‘wellness day’ for regular employees who are vaccinated and share that status with the city. This would be a full shift and would need to be scheduled according to existing procedures by the end of the year. It would not be paid out upon separation of employment. For paid-oncall and seasonal employees, who work flexible schedules, we instead recommend a stipend of $100 for POC and for seasonal employees normally scheduled for over 20 hours per week and $50 for seasonal employees normally scheduled for 20 or fewer hours per week.”

The exact budget implication wasn’t known for the testing and incentive programs, but money could be used from federal American Rescue Plan Act dollars the city has received.

Employees can request exemptions.

The memo states: “Employees may request an exception from vaccination requirements (if applicable) if the vaccine is medically contraindicated for them or medical necessity requires a delay in vaccination. Employees also may be legally entitled to a reasonable accommodation if they cannot be vaccinated and/or wear a face covering (as otherwise required by this policy) because of a disability, or if the provisions in this policy for vaccination, and/or testing for COVID-19, and/or wearing a face covering conflict with a sincerely held religious belief, practice, or observance. Requests for exceptions and reasonable accommodations must be initiated by the employee.”

If employees choose to be vaccinated, they must fully vaccinated by Feb. 9. After that, they will be subject to weekly testing and have to wear face coverings.

“This one has a lot of moving parts, and those parts will continue moving over the next few days,” said Wietecha.

The Supreme Court indicated they are taking “accelerated action” and speculation was that the measure could be stricken down.

“Recognizing there are moving parts, we’re at a position that we need to start taking some action so that we’re compliant with the law and prepared to go forward with it. One thing I really want to emphasize has been foremost in our conversations the last couple of weeks at our management team meetings has been wanting to make sure that we provide a safe work environment or to make sure that we’re complying with the law, but also not wanting to be heavy-handed with our employees,” Wietecha said. “If an employee chooses not to vaccinate or chooses not to tell us they’re not vaccinated, we can still work with that. They will have to have a weekly COVID test and come up clear.”

Wietecha put the cost at up to $70 per test for employees not vaccinated.

Employee medical information will remain confidential.

Braucks expressed the opinion that the city should await the Supreme Court decision.

“Are we exposing ourselves to liability if we go forward with a policy that is later found to be unconstitutional? If we have enforced or went forward with an unconstitutional policy, what protection do we have?” she asked.

I am concerned about enacting a policy that is obviously going to change or could change in the next several days,” said Braucks. “I have had a couple of constituents reach out to me with concerns about having this type of policy in place at all, concerns like providing personal medical information, collecting personal health information, a variety of different concerns. I just want to acknowledge that there have been people who are concerned about this policy, and I think we may be a bit premature.”

Wietecha was asked if the city could lose federal funds if such a program weren’t put in place. He said that isn’t the case for the city.

“There were three different OSHA regulations, one specifically for healthcare, one to federal contractors and one to large employers over 100 employees and that’s the one that applies to us. So, it’s not related to funding. It’s the fact that we have over 100 employees,” said Wietecha.

He noted that without the plan in place “Those OSHA fines can get pretty steep pretty fast.”

Photo by John McLoone