Legal Blog

OSHA Emergency Temporary Standard: What is 100 Employees?

On November 5, 2021, OSHA issued the Emergency Temporary Standard (ETS) that applies to certain employers with 100 or more employees (Covered Employers).

The ETS requires Covered Employers to either (1) adopt a mandatory vaccination policy, or (2) adopt a policy where employees may elect to get vaccinated or elect to undergo regular COVID-19 testing and wear a face mask. OSHA affords employers 30 days to become compliant with the ETS.

Before getting into the details of the ETS and what is required, let’s first review which businesses are covered by the ETS. NOTE: OSHA’s FAQ provides guidance on this calculation. The purpose of this blog is to provide an overview as to who is included in the 100 count. As you will see, there are situations where an employer may have over 100 employees, but some of those employees are not required to adhere to the vaccination or testing/mask policy. NOTE: This blog applies to non-healthcare entities.

Employers Should Conduct the 100 Count on November 5, 2021

Before examining the intricacies of the calculation, it is important that businesses count their employees on November 5, 2021. OSHA is explicit:

The determination of whether an employer falls within the scope of the ETS based on the number of employees should initially be made as of the effective date of the standard, November 5, 2021.

If the employer counts their employees and there are less than 100 employees, then the ETS does not apply. Now, if that employer hires more individuals and they meet or exceed 100 employees, then the employer must come into compliance with the ETS.

If an employer counts their employees and has 100 or more employees as of November 5, 2021, and then the workforce is subsequently reduced to less than 100 employees, the ETS still applies. This is an interesting way for OSHA to safeguard against employers laying off employees in order to avoid the ETS.

How Do We Count to 100?

Businesses with a National Presence

Businesses with offices across the country must count every employee in all of their U.S. locations. The count must occur at the “employer-level” (corporate-wide), not the individual location.

EXAMPLE: Company A has headquarters in Philadelphia, and locations in New York, Los Angeles, Chicago, and Seattle. All of these locations must be included in the calculation.

Franchisor and Franchisees

Franchisors and Franchisees are viewed as separate entities. This means the Franchisor counts their own corporate employees. Franchisees must also count their employees of the individual franchise.

EXAMPLE: A large national fast-food franchise does not tally up the total number of employees working at every franchise location. Rather, each franchise location is counted as a separate entity.

  • Part-Time Employees Count
  • Independent Contractors are Not Counted

Employees Working From Home

These employees are counted towards the 100 employee threshold. While they count towards the 100 person threshold, the ETS would only apply to the individuals who work in their office part-time/full-time around other individuals, and not working exclusively from their home.

The regulation is clear that the vaccine or testing mandate does not apply to those employees who: (1) do not report to a workplace where other individuals such as coworkers or customers are present, (2) work from home, or (3) work exclusively outdoors.

It follows that when a workforce has some workers who (1) do not report to a place where there are other around, (2) work from home, or (3) exclusively work outdoors, they must be counted towards the 100 threshold. However, those workers do not have to (1) get vaccinated or (2) submit to the testing/mask policy. With that being said, the regulations are clear that an employer has the right to require these employees to get vaccinated or submit to the testing/mask policy.

EXAMPLE: Company A has 100 employees and 50 of them work from home. The ETS applies to Company A, but the 50 employees who work from home do not have to subscribe to the Vaccine or Testing/Mask policy. With that being said, Company A can implement additional measures and require the remote employees to adhere to the policy.

Staffing Agencies

Staffing agencies must count their employees. When a staffing agency is placed at a host employer location, then ONLY THE STAFFING AGENCY would count their employees, NOT the host employer location.

EXAMPLE:

    • Staffing Agency has 150 employees;
    • 60 of them are physically working at Host Company
    • Host Company has 90 employees total.
    • Staffing Agency has 60 employees (“Staffing Employees”) working at Host Company’s location.
    • Host Company does NOT count the 60 Staffing Employees working in their office. Therefore, the Host Company only counts the 90 employees and therefore is NOT a Covered Employer under the ETS. Host Company does NOT need to implement the Vaccine or Testing/Masking Policy.
    • The Staffing Employees; however, are covered by the ETS and the Staffing Agency must implement the Vaccine or Testing/Masking Policy.

Temporary and seasonal workers are counted.

Multi-Employer Worksites

When there is a multi-employer worksite, like a construction site, each company represented must count their own employees across all job-sites and offices. The total number of individuals working at a job site does not matter when it comes to the applicability of the ETS.

EXAMPLE:

    • Job Site has 3 Contractors working simultaneously:
      • Contractor #1
        • They have 30 employees on the Job Site;
        • They have no other employees. This is their only project.
        • ETS does not apply to Contractor #1
      • Contractor #2
        • They have 30 employees on the Job Site;
        • They are a national contractor with projects going on nationwide.
        • They have 500 employees (corporate and field) total.
        • ETS applies to Contractor #2.
      • Contractor #3
        • They have 30 employees on the Job Site;
        • They have 20 remote corporate employees;
        • They have 50 employees on other job sites
        • ETS applies to Contractor #3. However, the Remote Corporate Employees are not required to be vaccinated or submit to the testing/mask policy. (NOTE: Contractor #3 could still require the Remote Corporate Employees to be vaccinated or get tested.

What About Employees Working Exclusively Outdoors?

Just like the remote employees, those who work exclusively outdoors are counted. However, as explained above, the ETS does not apply to these individuals.

What does “exclusively outdoors” mean? OSHA defines it as follows:

    • Employee must work outdoors on all days.
    • Employee must not routinely occupy vehicles with other employees as part of work duties. For instance, they cannot routinely drive to a worksite with a co-worker.
    • Employee works outdoors for the duration of every workday except for de minimis use of indoor spaces where others may be present (ie- bathroom or administrative office). The time spent indoors must be brief or occur exclusively in the employee’s home.
    • “Outdoors” means truly outdoors. This does not include building under construction where there are parts of the building demolished or open for circulation.

EXAMPLE: Company A has 100 employees and there are some who work physically in a corporate office, and others who work “exclusively outdoors.” The Company is a Covered Employer, but the ETS applies only to the in-person corporate folks.

Businesses should consult with counsel with any questions regarding their workforce.

Susie.Cirilli@offitkurman.com | 267.338.1395

Susie M. Cirilli is a Labor & Employment attorney that assists clients with issues involving the ADA, FMLA, and Title VII claims. Susie litigates on matters related to hostile work environment, discrimination based on sex, sexual orientation, pregnancy, race and disability. Susie has experience representing employers in fact-finding conferences and mediations before the PHRC and the EEOC. Susie’s practice also consists of counseling and advising clients on employment matters. She often advises employers on day to day employment matters and assists her clients on employee issues such as hiring and terminations, which includes drafting and negotiating separation agreements. Susie has experience drafting and revising employment agreements, employee handbooks, non-compete and non-solicitation agreements. Susie is admitted in the Middle District and Eastern District of Pennsylvania. She is also admitted in the Federal Court for the District of New Jersey.

 

 

 

 

 

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