COMPLIANCE ALERT: OSHA COVID-19 ETS: Determining the Number of Employees

On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal emergency temporary standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 5, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firmwide or companywide count).

The ETS provides specific guidance to help employers determine how many employees they have for the purpose of complying with the vaccination and testing standard. This Compliance Bulletin provides an overview of specific guidance offered for:

• Offsite locations;
• Part-time employees;
• Independent contractors or subcontractors;
• Staffing agencies;
• Temporary and seasonal employees;
• Multiemployer worksites; and
• Outdoor employees

Action Steps

Employers should familiarize themselves with the ETS and use its guidance to determine the number of employees. Nonexempt employers with 100 or more employees should prepare to comply with ETS requirements by the deadlines mentioned above.

Affected Employers

The ETS applies to all private employers with a total of 100 employees at any time while the ETS is in effect. This standard generally covers employers in all workplaces that are under OSHA’s authority and jurisdiction. This includes diverse industries such as:

• Manufacturing;
• Retail;
• Delivery services;
• Warehouses;
• Meatpacking;
• Agriculture;
• Construction;
• Logging;
• Maritime; and
• Health care

When determining the number of employees, employers must include all employees across all of their U.S. locations, regardless of vaccination status or where they perform their work. Employers must include part-time employees in their employee count but can exclude independent contractors.

Specific Employee-count Scenarios

The ETS addresses a number of specific scenarios to help employers in diverse circumstances determine whether they meet the 100-employee threshold.

Franchises

Employers must count all employees at all their U.S. locations for the purposes of compliance with the ETS. In a traditional franchisor-franchisee relationship in which each franchise location is independently owned and operated, the franchisor and franchisees would be separate entities for coverage purposes. In these cases, franchisors would only count “corporate” employees, and each franchisee would only count employees of that individual franchise.

Joint Employers

In joint employment situations, two or more related entities may be regarded as a single employer for Occupational Safety and Health Act (OSH Act) purposes if they handle safety matters as one company. In these cases, the combined number of employees of all joint-employment entities constitutes a single employee workforce for purposes of the ETS.

Staffing Agencies

When employees of a staffing agency are placed at a host employer location, only the staffing agency will count these jointly employed workers for purposes of the 100-employee threshold for coverage under this ETS. Normally, the staffing agency and the host employer would share responsibility for these workers under the OSH Act; however, with this ETS, OSHA has set the threshold for coverage based primarily on the administrative capacity to protect workers as quickly as possible. Since staffing agencies would typically handle administrative matters for these workers, OSHA has designated they would determine their 100-employee threshold by counting these leased employees. Host employers, however, would still be covered by this ETS if they have 100 or more employees, not counting leased employees. For enforcement purposes, traditional joint employer principles would apply where both employers are covered by the ETS.

Multiemployer Worksites

On a typical multiemployer worksite such as a construction site, each company represented—the host employer, the general contractor and each subcontractor—would only need to count its own employees, and the host employer and general contractor would not need to count the total number of workers at each site. However, each employer must count the total number of workers it employs regardless of where they report for work on a particular day. Thus, for example, if a general contractor has more than 100 employees spread out over multiple construction sites, that employer is covered under this ETS even if it does not have 100 or more employees present at any one worksite. Covering the employees of larger employers at multiemployer worksites would mitigate the spread of COVID-19 at the workplace even where not all employees are covered by this ETS because fully vaccinated employees (or unvaccinated employees wearing face coverings and submitting to weekly testing) would be less likely to spread the virus to unvaccinated workers at the site who are not covered by this ETS.